                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                    April 10, 2003 Session
                                     Heard at Dyersburg

          STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE
                  Appeal by permission from the Court of Criminal Appeals
                             Criminal Court for Shelby County
                    Nos. 97-09254 & 97-09255    Bernie Weinman, Judge


                     No. W2001-00568-SC-R11-CD - Filed August 5, 2003



E. RILEY ANDERSON, J., dissenting.


        The majority has concluded that the jury reasonably found that the defendant’s insanity at the
time of the offenses was not established by clear and convincing evidence. I disagree.

        My review of the evidence in the record indicates that the lay and expert testimony
overwhelmingly established that the defendant suffered from the severe mental illness of paranoid
schizophrenia and was unable to appreciate the nature or wrongfulness of his conduct when he
tragically shot and killed Mike Fultz and Fred Bizot on April 5, 1997. See Tenn. Code Ann. § 39-
11-501(a) (1997). I would hold that no reasonable trier of fact could have failed to find that the
defendant’s insanity at the time of the offenses was established by clear and convincing evidence.
I would affirm the Court of Criminal Appeals’ judgment, and I therefore dissent.

                                                  I

        Before July of 1995, the defense of insanity in Tennessee required evidence that “as a result
of a mental disease or defect,” a defendant “lacked substantial capacity either to appreciate the
wrongfulness of [his or her] conduct or to conform that conduct to the requirements of the law.”
Tenn. Code Ann. § 39-11-501 (repealed 1995). Under this statutory standard, if evidence at trial
raised a reasonable doubt as to the defendant’s sanity, the prosecution had the burden of proving the
defendant’s sanity beyond a reasonable doubt.” State v. Flake, 88 S.W.3d 540, 550 (Tenn. 2002)
(“Flake I”).

       Effective July 1, 1995, the legislature fundamentally altered and significantly narrowed the
defense of insanity in Tennessee. See Flake I, 88 S.W.3d at 540-41. The defense of insanity now
requires that a defendant, “as a result of a severe mental disease or defect, was unable to appreciate
the nature or wrongfulness of such defendant’s acts.” Tenn. Code Ann. § 39-11-501(a) (1997).
Moreover, the statute now places the burden on the defendant to establish the affirmative defense
by “clear and convincing evidence.” Id. As we said in Flake I, “clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Flake I, 88 S.W.3d at 551.

        In Flake I, the Court was confronted with determining the proper standard of review to
account for the revised and substantially narrowed statutory framework governing insanity. Flake
I, 88 S.W.3d at 551. The Court unanimously adopted a standard under which a jury verdict rejecting
the insanity defense should be reversed only when an appellate court, viewing the evidence most
favorably to the prosecution, concludes that no reasonable trier of fact could have failed to find that
the defendant’s insanity at the time of the offense was established by clear and convincing evidence.
Id. at 553-54. The Court majority believed that “this standard does not totally insulate the jury’s
finding from appellate review” but instead “enhances appellate review by virtue of its similarity to
the familiar sufficiency standard which appellate courts are accustomed to applying.” Id. at 554.

        Although I concurred in the adoption of the standard of review in Flake I, I disagreed with
the majority’s application of it to the facts and circumstances in that case,1 and I dissented on the
basis that “virtually all of the lay and expert testimony established the defendant’s insanity at the
time of the offense.” Id. at 557 (Anderson, J., dissenting) (emphasis in original). Moreover, I wrote
that “by upholding the jury’s verdict under the facts and circumstances of [that] case, the majority
has made appellate review of a jury’s verdict meaningless and useless.” Id. at 560 (Anderson, J.,
dissenting). In my view, the majority’s application of the standard to the evidence in the present case
has again completely insulated an unreasonable jury verdict from meaningful appellate review.

                                                        II

        In this case, the prosecution established that the defendant, Christopher M. Flake, was an
acquaintance of both Mike Fultz and Fred Bizot and that he shot both victims without apparent
provocation. The prosecution produced no evidence, however, establishing that the defendant had
ever expressed an intent or desire to commit acts of violence against the victims and no evidence
indicating that the defendant had any expressed motive or reason for his conduct. The prosecution
also produced no eyewitnesses to either offense and no lay or expert testimony describing the
defendant’s mental state immediately before, during, or after the offenses on April 5, 1997.

        In contrast, the defense presented overwhelming lay and expert evidence of the defendant’s
history of mental illness and his mental state before, during, and after the offenses. For instance,
Michael Musso, the defendant’s co-worker at Cooper Moving Company, was the sole witness who
described the defendant’s conduct and mental state shortly before the offenses on April 5, 1997.
Musso testified that the defendant seemed “unusually agitated” that day, that he spoke even less than


        1
            The defendant was convicted of attempted voluntary manslaughter for the shooting of Turner Carpenter
on April 6, 1997. The defense presented an insanity defense based on nearly the same lay and expert testimony
prese nted in the pre sent case. Flake I, 88 S.W.3d at 542.

                                                        2
normal, and that he took an unusual number of breaks to smoke, even though he was in the presence
of customers who were paying them by the hour. Musso also described a bizarre incident that day
in which the defendant asked to borrow money for lunch but then tore up a hamburger into small
pieces without eating any of it. Musso testified that the defendant’s work performance that day was
“really bad,” and he later asked that he not be assigned to work with the defendant.

       The defendant’s father, James Flake, testified that the defendant had a lengthy history of
mental illness, depression, and substance abuse. According to Flake, the defendant was 11 or 12
years of age when he began to withdraw socially and have trouble with his grades. The defendant
had few friends and began having disciplinary problems. James Flake consulted a church counselor
when the defendant was in ninth grade, and the counselor suggested that the defendant should see
a mental health professional.

        The defendant began seeing a psychiatrist, Dr. Richard Luscomb, for a period of three or four
years. He began drinking, however, suffered from depression, and continued to decline
academically. The defendant was hospitalized for substance abuse and depression on three
occasions. In 1988, the defendant was admitted to Parkwest Hospital for sixty days. When released,
he began attending Alcoholics Anonymous six nights per week. In 1989, the defendant was
hospitalized for another sixty days due to substance abuse and depression. Although the defendant
transferred to a high school that had a support group for students with substance abuse issues, he
continued to deteriorate and suffer from depression. In 1990, the defendant was hospitalized a third
time for substance abuse and depression.

       James Flake testified that the defendant graduated from high school but dropped out of a
Mississippi junior college after only one semester because he had grown “angry, frustrated, and
depressed.” The defendant next attended the University of Tennessee at Martin from 1991 to 1993;
while he improved academically, the defendant still returned home each weekend and appeared
depressed and angry. The defendant later dropped out of UT-Martin and attended Shelby State
Community College from 1993 to 1995, where he managed only a 1.8 grade point average.

        James Flake testified that the defendant saw Dr. Melvin Goldin, a Memphis psychiatrist,
from 1993 to 1995, and Dr. Janet Johnson from 1995 to 1997,2 but that his condition did not
improve. Flake recalled the defendant saying at various times, “my head is messed up,” “my mind
is blank,” and “I don’t know who I am.” The defendant isolated himself, refused to trust anyone, and
lost several jobs. Flake testified that the defendant’s academic skills continued to erode and that he
had the writing ability of an elementary school student. Although the defendant enrolled at the
University of Memphis, he passed only two of six courses.

       James Flake testified that the defendant’s condition continued its downward spiral throughout
February and March of 1997, and up until the offenses in this case. The defendant was depressed,


         2
          The evidence in the record later revealed that Dr. Janet Johnson was a physician w ho sp ecialized in
substance abuse and addiction. She was d eceased at the time o f the trial.

                                                          3
remained in bed much of the time, and often made bizarre remarks, which included the following:

       •       In February or early March of 1997, the defendant stated that his A.A. sponsor was
               “running drugs from Mexico” and that another sponsor was going to “beat him to
               death with a baseball bat.”

       •       The defendant said that he had caused a recent airliner crash in Florida.

       •       The defendant wrote the name of his elementary school principal on a piece of paper
               with the words, “the first woman to hit me.”

       •       The defendant told his father that a grade school classmate told him that an
               elementary school teacher had “bad mouthed him.” The defendant also told his
               father that “Buchanani has the answer.”

       •       The defendant told his father that he was “getting closer to the answer” and gave his
               father a business card and other “important papers” to hold onto.

       •       The defendant said that he knew who was responsible for the Oklahoma City
               bombing and the 1993 World Trade Center bombing.

        In March of 1997, the defendant drove to a convenience store in a thunderstorm, took
cigarettes, smiled and waved at the clerk, and then left without paying. When the police arrived to
investigate the theft, James Flake drove the defendant back to the store to pay for the cigarettes. The
defendant was angry, insisted that he was owed the cigarettes, and had no remorse.

        On April 1, 1997, only four days before the offenses in this case, James Flake believed the
defendant was deteriorating and arranged for him to meet with Dr. Johnson. Dr. Johnson gave the
defendant an envelope containing samples of Prozac intended to last for two weeks. On the very
next day, however, Dr. Johnson called James Flake and told him that she had received a telephone
call from a man who had found the envelope with the Prozac samples in his mailbox. The defendant
said that he had placed the Prozac in the mailbox because he believed the man, who he did not know,
needed help. According to James Flake, it was around this time that the defendant had pulled a fire
alarm at the University of Memphis because a professor had changed his assignment.

       James Flake testified that when he finally asked the defendant why he was acting so
strangely, the following exchange occurred:

               [The defendant] was sitting on the edge of his bed and he turned and
               looked at me for about ten seconds. I was petrified by his look. I can
               only describe it as it appeared that his eyes had even changed colors.
               It was as if he was burning right through me. He thought for ten
               seconds and his answer to what had caused him to do these things


                                                  4
                 was the opening of the new Wolfchase Galleria Mall. I knew at that
                 point that I believed my son had lost his mind.

Flake made another appointment for the defendant with Dr. Johnson on April 3, 1997, during which
both he and Dr. Johnson tried to convince the defendant to voluntarily commit himself. The
defendant refused, saying that “they had never helped him before” and that he believed “everything
was okay.”

        The record reveals that in March of 1997, i.e., in the midst of this period of bizarre behavior
and deteriorating mental health, the defendant applied for a handgun. He completed the application
and related paperwork by withholding his history of mental illness, hospitalizations, and substance
abuse. On April 4, 1997, the defendant retrieved the weapon from the store by filling out additional
paperwork. On the very next day, the defendant committed the offenses.

        James Flake testified that he did not know the defendant had applied for and purchased a
handgun. On April 5, 1997, i.e., the day the victims were shot and killed, the defendant returned
home around 11:00 p.m. following an A.A. meeting. Flake asked the defendant if everything was
okay and the defendant said, “yes.” The next morning, April 6, 1997, the defendant had breakfast,
kissed his mother, and seemed to have a “regular” morning. Later that day, however, the defendant
shot a third person, Turner Carpenter, at a nearby church.

        On the night of April 6, 1997, James Flake received a telephone call indicating that the
defendant was a suspect in a shooting. When the defendant arrived home, James Flake told him to
cooperate with authorities. He testified that the defendant had a “blank” look when arrested.3 The
police officers’ search of the defendant’s room after his arrest revealed a large quantity of
prescription Zoloft and Cylert that the defendant obviously had not taken as prescribed.

        Turner Carpenter testified on the defendant’s behalf. Carpenter said that he had been
introduced to the defendant in his position as a pastoral counselor with an addiction and dependency
program. After missing several prior appointments, the defendant arrived at Carpenter’s office
around 6:00 p.m. on April 6, 1997, and asked to meet with him. The defendant appeared “normal,”
and he spoke in a normal voice. Carpenter agreed to meet with the defendant after he finished
meeting with another individual. A few minutes later, however, Carpenter saw the defendant in his
outer office. The defendant “leaped out from the couch” and “screamed” Carpenter’s name, “just
as loud as he could scream it.” The defendant, who Carpenter described as “horrible looking” and
“angry as the devil,” pointed a gun and fired one shot; the bullet struck Carpenter’s hand and
penetrated his lung, liver, and diaphragm. Carpenter testified that there had been no ill will or
animosity between he and the defendant and that he had no rational explanation for why the
defendant shot him.


        3
           One officer testified that the defendant showed no emotion but looked “tired” during the arrest. When an
officer asked about an “altercation,” the defendant said that he had “shot a guy.” The defendant executed a consent
to search form and told officers where to find the gun.

                                                         5
        In addition to these lay witnesses, the defense introduced the expert testimony of seven
mental health professionals who related the defendant’s lengthy history of mental illness, treatment,
and medications. Moreover, six of the mental health experts, both psychiatrists and psychologists,
performed numerous, comprehensive evaluations and determined that the defendant suffered from
a severe mental illness, schizophrenia, and was unable to appreciate the wrongfulness of his conduct
when shooting the victims. Indeed, the record reveals that after the offenses and prior to trial, the
defendant was examined by a number of psychiatrists and found by the trial court to be incompetent
to stand trial for a period of over two years after the offenses. The trial court declared him competent
to stand trial only after the State had furnished extensive treatment and anti-psychotic medication
over the two years following the offenses.

        The first expert witness to testify for the defense, Dr. Melvin Golden, stated that he saw the
defendant approximately 17 or 18 times between 1991 and 1995. He related that the defendant had
been under the care of Dr. Richard Luscomb since 1988, that the defendant had been hospitalized
three times, and that the defendant had thoughts of suicide that led to his hospitalization in 1989 and
1990. He recalled that the defendant reported “homicidal thoughts” about persons who frustrated
him. Dr. Goldin diagnosed the defendant with obsessive compulsive disorder and prescribed
medicine for depression. Dr. Goldin offered no testimony on the defendant’s mental state at the time
of the offenses in this case.

        The next mental health professional to testify was Dr. Lynne Zager, a clinical psychologist
and Director of the Forensic Services Program at Midtown Mental Health Center. Pursuant to a
State-requested court order, Dr. Zager examined the defendant from October 1997 to January 1998
to determine both his competency to stand trial and his mental state at the time of the offenses. Dr.
Zager testified that she interviewed the defendant four times, that the defendant suffered from a
“severe, persistent mental illness,” i.e., paranoid schizophrenia, and that due to the mental illness,
the defendant could not appreciate the nature or wrongfulness of his conduct during the shootings
on April 5, 1997.4

        Dr. Zager testified that persons suffering from schizophrenia form “false fixed beliefs,”
delusions, and possible hallucinations. She testified that the defendant claimed to hear voices that
were broadcast to others and that the defendant believed the victims were responsible for the
bombings in Oklahoma City and at the World Trade Center. She testified that the defendant believed
that the victims were homosexuals who made him feel uncomfortable and that the defendant said that
he had a list of 140 names of persons he had planned to kill. According to Dr. Zager, the defendant
believed his actions “were to protect society, to protect himself, [and] to protect his family.”




         4
           The majority no tes that D r. Zage r conceded on cross-exam ination that John Perry, the mental health
services coordinator at the Shelby County Jail, told her that the defendant “was not really sick” and was “pulling
one” on the evaluation team. Perry did not testify, however, and there was no evidence regarding his medical or
other qualifications, if any, or the basis for his opinion.

                                                          6
        The next expert to testify was Dr. Sam Craddock, a state-employed clinical psychologist at
Middle Tennessee Mental Health Institute. Dr. Craddock testified that a team of mental health
workers evaluated the defendant from November 17, 1997 to December 16, 1997; the evaluation team
consisted of himself, a psychiatrist, a master’s level social worker who gathered the defendant’s social
and medical histories, and nurses and technicians who observed the defendant’s everyday conduct.
Dr. Craddock explained that the “goal of the team is to come up with a diagnosis and to report back
to the Court what we think the person’s mental disability is, if there is one.” He acknowledged that
he most often testifies on behalf of the prosecution because his findings and conclusions frequently
are not favorable to the defendant.

         Dr. Craddock testified that he administered several psychological examinations to the
defendant including the Shipley Institution of Learning Scale to measure verbal comprehension, a
Booklet Category test to measure reasoning, a Minnesota Multi-phasic Personality Inventory, (“MMPI
- II test”), and a Personal Assessment Inventory. Dr. Craddock testified that he evaluated each
assessment for indicia of malingering and that the defendant’s symptoms were genuine:

               [A]t times, it certainly came to my mind that he might be malingering.
               Just because I have test scores that say one thing. His parents provided
               input. And I’m not going to rule out the possibility, at any time, that
               he might be malingering. But, once I decided that I was looking at
               genuine symptoms, he expressed a number of delusional beliefs, false
               beliefs, ideas that had no basis in reality [] that things were going on
               that are consistent with somebody that has schizophrenia and
               particularly paranoid thinking.

       In diagnosing the defendant with paranoid schizophrenia, Dr. Craddock explained that the
defendant’s symptoms evolved over a period of years:

               [The defendant] had not been diagnosed schizophrenic before he came
               to our facility. A frequent diagnosis in his past was depression. He
               also had a diagnosis of abusing alcohol, or other substances. I think
               it’s well known in the literature, there’s good literature out there. I
               think it very well describes [the defendant’s] evolving symptoms that
               finally came to be recognized as schizophrenia.

Dr. Craddock concluded that the defendant suffered from this serious mental illness at the time of the
shootings on April 5, 1997. Although he could not address the issue of whether the defendant
appreciated the wrongfulness of his conduct, Dr. Craddock testified that the defendant “perceived
[that] the shootings were right” and that he felt “morally justified” because he falsely believed the
victims were terrorists.

       Also testifying for the defense was Dr. Rokeya Farooque, the psychiatrist at Middle Tennessee
Mental Health Institute who evaluated the defendant along with Dr. Craddock and the team of mental


                                                   7
health professionals. Dr. Farooque reviewed the defendant’s medical records, which indicated the
defendant had experienced prior hallucinations associated with drug abuse, blackouts, major
depression, an anxiety disorder, and an obsessive-compulsive disorder. Dr. Farooque noted that the
defendant had received psychiatric treatment, including hospitalization, for his prior conditions.

        Dr. Farooque testified that the defendant suffered from paranoid schizophrenia and described
the defendant’s delusional thinking:

               [H]is delusional thinking was that the victims of his charges, one of
               them was responsible for the Oklahoma bombing. One of the them
               was responsible for the World Trade Center bombing and [the
               defendant] worked for [the] FBI, so he’s going to take care of them
               and that’s not wrong, because he’s doing society a favor by taking care
               of the terrorists. . . . And that was fixed in his mind that whatever he
               did, that was not wrong, [] because they are terrorists.

Dr. Farooque concluded that the defendant suffered from paranoid schizophrenia and was incapable
of appreciating the nature or wrongfulness of his acts in committing the offenses on April 5, 1997.

        The next expert witness on behalf of the defense was Dr. John Aday, a state-employed
psychologist on the forensic unit of the Western Mental Health Institute. Dr. Aday testified that the
defendant was transferred to his facility in November of 1998, and that he was evaluated for his
competency in February of 1999. Although found to be competent to stand trial, the defendant “had
a major thought disorder[,] continue[d] to actively hallucinate and [his] delusions concerning the
victims remain[ed] intact.” Dr. Aday concluded that the defendant suffered from paranoid
schizophrenia based on his hallucinations, delusions, flat affect, and speech. The defendant indicated
that he was a government agent and that he did not believe that shooting the victims was wrong.

       Dr. Hilary Linder, a practicing psychiatrist for thirty-three years employed by the State at
Western Mental Health Institute, also testified for the defense. He testified that the defendant had
been his patient since being transferred from Middle Tennessee Mental Health Institute in November
of 1998. Dr. Linder concluded that the defendant suffered from paranoid schizophrenia at the time
of the offenses on April 5, 1997, and that the defendant did not know it was wrong to shoot the
victims. Dr. Linder said that he observed the defendant five days a week for nearly two and a half
years and that the defendant was not malingering or feigning a mental illness.

        Finally, Dr. John Hutson, a clinical psychologist employed by the defense, testified that he
interviewed the defendant on April 8, 1997, and later interviewed the defendant and his parents on
numerous occasions. The defendant was “very difficult to interview,” “very disturbed,” and “hard
to keep focused.” Dr. Hutson evaluated the defendant, reviewed his lengthy history of mental illness,
and administered several tests. He testified that the defendant’s results on an MMPI-II test showed
that “he was very disturbed, extremely disturbed actually,” and that “the paranoia scale and the



                                                  8
schizophrenia scale were elevated well beyond the level of psychopathology.” Dr. Hutson further
explained that the results did not indicate that the defendant was malingering.

       Dr. Hutson concluded that the defendant had either paranoid schizophrenia or chronic
undifferentiated schizophrenia and could not appreciate the wrongfulness of his actions on April 5,
1997. Dr. Hutson testified that the defendant had “delusions, hallucinations, occasional disorganized
speech and virtually no affect,” and that the defendant believed that he was working as a government
agent when he shot and killed the victims. Dr. Hutson testified that the defendant was “one of the
three most disturbed criminal defendants” that he had ever seen among the over 10,000 persons he
had evaluated in his career as a mental health professional.

       Not a single expert witness testified on behalf of the prosecution.

         Accordingly, all of the mental health professionals who completed lengthy, comprehensive
evaluations of the defendant consistently determined that he suffered from a severe mental illness.
Six mental health experts concluded that the defendant suffered from the severe mental illness of
paranoid schizophrenia and was unable to appreciate the wrongfulness of his conduct on April 5,
1997. These professionals had years of experience in conducting competency and mental state
evaluations. Five of the expert witnesses were employed by the State of Tennessee and had no motive
to provide testimony favorable to the defense; indeed, Dr. Craddock testified that he nearly always
testifies on behalf of the prosecution because his conclusions are rarely helpful to the defendant.

        In contrast, the State presented no lay or expert testimony showing either that the defendant
did not have a severe mental illness or that he could appreciate the wrongfulness of his conduct at the
time of the offenses.

                                                 III

        It is with this overwhelming evidentiary record in mind that I turn to the issue of whether the
jury reasonably found that the defendant’s insanity at the time of the offenses was not established by
clear and convincing evidence. The majority applies the standard under Flake I, yet concludes that
the jury’s verdict was supported by the evidence. I disagree.

        The majority argues that the defendant’s sanity was demonstrated by his ability to obtain a
handgun and his “forethought” in providing false answers on the purchase application and background
check. There was no evidence, however, that a person suffering from paranoid schizophrenia would
be incapable of such conduct; indeed, all of the expert testimony indicated that a person with
schizophrenia is capable of acting “normally” at times, just as the defendant appeared “normal” to
Turner Carpenter seconds before he was shot. Moreover, the defendant’s conduct in applying for and
obtaining a handgun was initiated weeks before the crimes and shed no light on his mental state at
the time of the offenses.




                                                  9
        The prosecution offered no eyewitnesses to the crimes and no evidence regarding the
defendant’s mental state during the shootings. Only a single witness, Michael Musso, testified about
the defendant’s behavior and mental state on the day of April 5, 1997. Musso, the defendant’s co-
worker, stated that the defendant’s behavior was extremely unusual and that his work performance
that day was “really bad.” Moreover, the testimony of James Flake vividly illustrated that the
defendant’s purchase of the handgun occurred in the midst of the defendant’s continued mental
deterioration, bizarre conduct, delusional thinking, and apparent failure to take his prescribed
medication.

         The majority also observes that the jury may have found that the defendant’s motive for
shooting the victims was in someway related to the defendant’s alleged fear of homosexuals.
Although the prosecution’s cross-examination of several of the mental health professionals alluded
to this point, each expert witness consistently reiterated that the defendant’s schizophrenia was
characterized in part by delusional thinking. The defendant believed, for instance, that the victims
were terrorists who were responsible for bombings in Oklahoma City and the World Trade Center in
the early and mid-1990s. The defendant also believed that he was a government agent, that he was
morally justified in killing the victims, and that he was protecting himself, his family, and society in
killing the victims. In this context, it is difficult to fathom how the defendant’s delusional belief that
the victims were homosexuals created a reasonable inference that the defendant’s actions were the
product of a rational or “sane” mind. In short, the evidence of what the majority has described as an
“alternative explanation” for the commission of the crimes was speculative at best and failed to
reasonably rebut the evidence of the defendant’s mental illness and his inability to appreciate the
wrongfulness of his actions.

         The majority argues that the State’s cross-examination of the defense experts suggested that
the defendant was faking a mental illness because he never complained of auditory hallucinations
until after these offenses were committed and because he indicated to one expert that he did not want
to be “caught” committing the offenses. The malingering theory, however, was thoroughly refuted
by the evidence. Both the lay and expert testimony revealed that the defendant’s history of mental
illness, including his three prior hospitalizations and extensive mental health intervention, spanned
a period of over ten years before the offenses were committed. Moreover, the expert testimony
revealed that the defendant was examined, evaluated, tested, and interviewed by no fewer than six
psychologists and psychiatrists for over two years after the offenses on April 5, 1997. Every single
mental health professional who evaluated the defendant concluded that he suffered from a serious
mental illness and was not malingering.

         Despite this overwhelming evidence, the majority emphasizes Dr. Craddock’s statement that
he was “not going to rule out the possibility at any time, that he might be malingering.” The context
of this testimony, however, was as follows:

                [A]t times, it certainly came to my mind that he might be malingering.
                Just because I have test scores that say one thing. His parents provided
                input. And I’m not going to rule out the possibility, at any time, that


                                                   10
                he might be malingering. But, once I decided that I was looking at
                genuine symptoms, he expressed a number of delusional beliefs, false
                beliefs, ideas that had no basis in reality [] that things were going on
                that are consistent with somebody that has schizophrenia and
                particularly paranoid thinking.

In my view, the entire quote reveals that the statement relied upon by the majority simply refers to
Dr. Craddock’s state of mind during the examination and testing of the defendant and not to his
conclusion after completing the evaluation. Indeed, Dr. Craddock’s very next sentence indicated that
he “decided that [he] was looking at genuine symptoms” and that the defendant “expressed a number
of delusional beliefs, false beliefs that had no basis in reality. . . .”

        The majority also relies upon a statement made by John Perry, the mental health services
coordinator at the Shelby County Jail, who allegedly told Dr. Zager that the defendant “was not really
sick.” Neither Perry’s medical qualifications nor the basis for his conclusions are found in the record.
Indeed, it is telling that the prosecution did not present Perry as a witness in its case in chief.

         In short, not a single mental health expert concluded that the defendant was malingering, and
not a single mental health expert testified that the defendant’s failure to report auditory hallucinations
before the offenses affected the question of whether he suffered from paranoid schizophrenia.
Accordingly, the evidence cited by the majority did not refute the evidence of the defendant’s serious
mental illness or his inability to appreciate the wrongfulness of his actions at the time the offenses
were committed.

        This was not a case in which expert witnesses offered different opinions regarding the
defendant’s mental state. All were unanimous in the view that the defendant suffered from a severe
mental illness, schizophrenia, and that he could not appreciate the wrongfulness of his conduct. This
is also not a case in which there was lay testimony regarding the facts and circumstances of the
offenses that created reasonable inferences that differed from the expert testimony. In short, I once
again find no basis in this record for the jury to have reasonably rejected the expert and lay evidence
regarding the defendant’s serious mental illness and his inability to appreciate the wrongfulness of
his acts at the time of the offense.

        As I feared in Flake I, the majority’s application of the standard of review to the even stronger
evidence of insanity in this case has once more rendered appellate review of the jury’s verdict all but
meaningless. Indeed, it is now difficult to imagine a case that will warrant a reversal of the jury’s
verdict on the issue of insanity.

        Accordingly, I disagree with the majority’s conclusion and would affirm the Court of Criminal
Appeals’ determination that no reasonable trier of fact could have failed to find that the defendant’s
insanity at the time of the offense was established by clear and convincing evidence.




                                                   11
     _______________________________________
     E. RILEY ANDERSON, JUSTICE




12
