         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                  Remanded by Supreme Court on December 23, 2002

                STATE OF TENNESSEE v. CLAUDE W. CHEEKS

                Direct Appeal from the Criminal Court for Hamilton County
                Nos. 222245, 222283, and 223379   Rebecca J. Stern, Judge



                                No. E2002-03083-CCA-RM-CD
                                      October 17, 2003

The appellant, Claude W. Cheeks, was convicted by a jury in the Hamilton County Criminal Court
of one count of especially aggravated robbery and two counts of aggravated assault. The trial court
sentenced the appellant to a total effective sentence of twenty-five years incarceration in the
Tennessee Department of Correction. The appellant appealed and on July 22, 2002, this court
reversed his convictions, finding that the appellant had met his burden of establishing his insanity
at the time of the offenses. The State filed an application for permission to appeal to our supreme
court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. The supreme court
granted the State’s application for the sole purpose of remanding the case to this court for
reconsideration in light of its opinion in State v. Flake, 88 S.W.3d 540 (Tenn. 2002). Upon
reconsideration, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed.

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

Bryan Henry Hoss, C. Leland Davis, and David W. Wallace, Chattanooga, Tennessee, for the
appellant, Claude W. Cheeks.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
William H. Cox, District Attorney General; and Dean Ferraro and Mary Sullivan Moore, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION


        This Court’s original opinion summarized the facts underlying the appellant’s convictions
as follows:
On the morning of June 24, 1998, at approximately 10:30 a.m. or
11:00 a.m., the victim, Frederick Stuart Newman, and his son,
Christopher, walked from Newman’s restaurant to AmSouth Bank in
downtown Chattanooga to get change for the restaurant. At trial,
Newman testified that he and eight-year-old Christopher walked into
the bank, talked with some people they knew, and then requested the
change from the teller. He placed the change in a blue AmSouth
deposit bag and picked up the bags from the previous day’s deposit.
Newman noted that, after collecting money from the bank, his normal
procedure was to walk into the outer lobby of the bank, look around
for anything that might be of concern, and light a cigarette before
leaving the building.

As Newman and Christopher walked into the outer lobby of the bank,
the appellant approached and asked Newman for a cigarette.
Newman replied that he was sorry, but the cigarette in his hand was
his last. Newman recalled at trial that the appellant did not appear
angry or agitated by his response, and Newman and Christopher
continued to walk out of the building. Newman further testified that
he has no memory of leaving the bank, but he does remember falling
onto the pavement outside the bank, explaining that “I was you know,
thinking, you know, ‘What a dummy, you just tripped over your
shoelaces.’” He recounted that he had “tunnel vision” and then felt
himself hit the pavement. He heard Christopher scream but was
unable to get up. Newman related that he next remembers being
dragged into the bank where he drifted in and out of consciousness
while his wife, a nurse who was called to the scene, worked to
stabilize him until an ambulance arrived.

When Newman regained consciousness, neither he nor his son had
possession of the deposit bag. He explained that he received
lacerations to the back of his skull, which injuries required thirty to
forty stitches, and his skull was fractured. He also had “a brain
hemorrhage,” as well as additional fractures. Newman stated that he
continues to have pain, mobility problems, and memory problems.
Specifically, he estimated that he has “about 70 percent of my
abilities back, and that [is] probably about as far as I [can] go.”

Christopher Newman testified that he was with his dad on the day of
the offenses. He saw the appellant as they walked out of the bank.
As they left, he saw his dad fall to the ground, and the appellant
started beating his dad on the head with a cinder block. Christopher
screamed and ran into the bank for help. When he ran back to his dad,


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he saw a man named Ron Hines stop his car and attempt to assist
Newman. The appellant then attacked Hines. Christopher noted that
the appellant took the bag of change from his dad.

Teresa Bailey, an employee of AmSouth Bank, was working at the
bank’s downtown branch on June 24, 1998. She testified that, on the
morning of the offenses, she observed the appellant come into the
bank on two separate occasions and was informed that he withdrew
two dollars ($2) from his account on each visit. Bailey recounted that
she had known the appellant “years ago” when she worked at the
Freight Depot office where the appellant had an account. She
recalled that the appellant frequently came into the Freight Depot
office to cash checks or make deposits. She did not know if the
appellant was a frequent customer at the downtown AmSouth Bank
because she had “just been back to that bank.” Although she did not
assist the appellant on the morning of the offenses, she did observe
him walk across the lobby of the bank during both visits. Bailey
concluded that the appellant appeared to act normally and seemed to
be in control of his physical and mental facilities. She contended that
two withdrawals of two dollars ($2) each within a two-hour period
was not abnormal banking procedure. Bailey conceded that she was
in a separate room and did not witness the assault on Newman.

Kimberly Needham Day testified that, on the day of the offenses, she
was walking out of a building next to AmSouth Bank in downtown
Chattanooga when she saw the appellant walk behind Newman and
Christopher, raise a cinder block, and hit Newman on the head two or
three times. She asserted that the appellant quickly walked away
holding a blue deposit bag. The area was busy because of the
lunchtime crowd, and the appellant was followed by several people
who attempted to detain him. She did not see the arrest and was
unable to say whether the appellant resisted arrest.            Day
acknowledged that she observed the appellant for only ten or fifteen
seconds from a distance of forty feet. However, she positively
identified the appellant as the perpetrator.

Ronald Hines testified that, on June 24, 1998, he was driving through
downtown Chattanooga when he saw the appellant standing over
Newman, beating Newman on the back of the head. Hines jumped
from his vehicle and ran toward the appellant, ordering the appellant
to stop. The appellant stopped, looked up at Hines with his hand
raised, snatched the deposit bag, and ran down the street. Hines
continued shouting, demanding that the appellant stop. The appellant


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stopped in a crowd of people, turned to Hines, and said, “Oh, you
want some of this?” The appellant then lunged at Hines and struck
him in the head with the cinder block. The two men “tussled,” and
Hines forced the appellant against a tree. The appellant hit Hines in
the shoulder with the cinder block, and Hines struck the appellant in
the groin. When the appellant dropped to his knees, Hines ran to the
nearby Justice Building to obtain assistance. The appellant was
eventually apprehended by police. As a result of the altercation,
Hines sustained a bruise on his shoulder and received eleven stitches
in his head.

Officer James T. Chapin of the Chattanooga Police Department
testified that he was having lunch at a restaurant in the area when he
received a report of a robbery in progress. As he stepped outside the
restaurant, he looked across the street and saw the appellant walking
on the sidewalk. The appellant was being followed by a crowd of
people who were pointing at him and also by a truck whose driver
was honking the horn. The appellant was not running or fleeing but
appeared to be “just walking.” Officer Chapin approached the
appellant and told him to stop. The appellant complied, offering no
resistance. Officer Chapin then placed the appellant under arrest.
Officer Chapin testified that, at the time of the arrest, he was in
uniform and visibly armed. A deposit bag was in the appellant’s
hand, and a piece of cinder block was found in the appellant’s jacket
pocket.

Following the appellant’s arrest, Officer Chapin transported him to
the police station. The appellant remained mostly uncommunicative
and sat on a bench with a “blank look on his face.” When Officer
Chapin asked the appellant why he had committed the crime, the
appellant replied, “I was hungry,” asked “When is lunch?” and began
laughing. Officer Chapin conceded that, immediately upon
encountering the appellant, it was apparent that “there was something
wrong with this guy.” The appellant’s eyes were vacant and
emotionless, he had been followed by a vocal crowd without seeming
to notice, and he laughed and smiled inappropriately during the
booking procedure.

Dr. David Ciraulo, a trauma critical care surgeon at Erlanger Medical
Center, treated Newman following the assault. He reported that
Newman was hospitalized for three to four days following his
injuries. As a result of the injuries, including a closed head injury,
Newman suffered extreme pain and extensive blood loss. At the time


                                 -4-
of discharge, Newman had problems maintaining his gait and was
sent home with a walker. Newman also complained of headaches and
memory problems. Dr. Ciraulo opined that such an injury poses a
substantial risk of death.

After presenting the foregoing proof, the State rested. The defense
moved for judgments of acquittal, which motions were denied.
Thereafter, the defense presented the testimony of two mental health
professionals, Dr. Bob Brown and Dr. Madhusudham Mudiam.

Dr. Brown testified that he is a psychologist and is employed by the
State of Tennessee at Moccasin Bend Mental Health Institute
(MBMHI). In 1998, in response to a request by the trial court, an
evaluation team at MBMHI performed a forensic evaluation of the
appellant for the court. Dr. Brown, a member of the team, explained
that, when the court requests a forensic evaluation, typically the
questions to be answered are: whether the individual is competent to
stand trial, whether the individual can defend himself against the
charges in a court of law, and whether there is support for the insanity
defense. Accordingly, the evaluator must determine the mental state
of the individual at the time of the crime as well as at the time of trial.
Dr. Brown stated that, of all cases referred by the courts in a given
year, only four percent (4%) to six percent (6%) can support an
insanity defense. Dr. Brown stated that a finding of incompetency to
stand trial is also rare.

In October 1998, following the forensic evaluation at MBMHI, the
evaluation team deemed the appellant incompetent to stand trial due
to his confusion and paranoia. Dr. Brown explained that the appellant
was unable to understand the charges against him, was unable to
cooperate with his attorney, did not understand a court proceeding,
and “could not even manage his behavior appropriately in a
courtroom setting.” Notably, during a meeting with the evaluation
team, the appellant claimed that “Dr. Nickerson is the judicial judge.”
Dr. Brown concluded that the appellant was in need of “extensive,
intensive, inpatient psychiatric services.”

Dr. Brown further related that the appellant has a history of treatment
for mental illness, which history began in April 1980 when the
appellant was admitted to MBMHI and was diagnosed with paranoid
schizophrenia, a diagnosis that was reiterated in later years. Dr.
Brown explained that schizophrenia is, “in the opinion of most
mental health clinicians, probably the most severe form of mental


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                 illness.” Specifically addressing the appellant’s mental condition in
                 1998, Dr. Brown noted that “[he] had the disorganized behavior,
                 which is one of the prominent features [of paranoid schizophrenia].
                 He could not adequately monitor his behavior, behave himself
                 adequately the first time we wanted to meet with him and the second
                 time, we had to terminate because he was so agitated, and we felt that
                 the [evaluation] team was at risk of being harmed by his behavior.”
                 Dr. Brown observed, however, that someone suffering from paranoid
                 schizophrenia could also appear superficially normal.

                 Dr. Brown additionally recalled that, during an interview on
                 November 3, 1998, the appellant told the evaluation team that he
                 attacked Newman because he was chosen by the Lord to intervene in
                 Newman’s life. Additionally, the appellant stated that “Satan saved
                 my life. I read the Bible through twice, took three years. God asked
                 me to rule the world.” Dr. Brown reported that the appellant then
                 began to stare at the members of the team and laugh inappropriately.
                 It was on this occasion that the interview was terminated due to
                 concern that the team was at “risk of harm” from the appellant. Dr.
                 Brown reported that, following this interview, the appellant
                 responded well to antipsychotic medication, and, on November 12,
                 1998, he was discharged. At that time, the appellant was deemed
                 competent to stand trial. However, Dr. Brown asserted that the
                 forensic team unanimously concluded that an insanity defense could
                 be supported. Following his discharge, the appellant was returned to
                 jail, and his treatment was monitored through the Sheriff’s
                 Department by Johnson Mental Health Center.

                 In early 2000, the trial court ordered a reevaluation of the appellant.
                 The appellant was readmitted to MBMHI on February 16, 2000, and
                 an evaluation team was again assembled to assess the appellant.1 The
                 team once again concluded that the appellant was competent to stand
                 trial but noted that “[i]t has been determined that a defense of insanity
                 on the charges of aggravated assault and aggravated robbery can be
                 supported on the basis of a severe mental illness as a result of a
                 psychotic spectrum disorder, in [the appellant’s] case, schizoaffective
                 disorder.”




        1
           The “attending members of the forensic team” for the 2000 evaluation were Dr. Bob Brown, W ilbert Bunch,
Dr. Mad husudham M udiam, Dr. John Lowe, Dr. W illis Marshall, John Hartman, Ed Rocca, D onald Bailey, Ursula B ell,
and Patricia Alverson.

                                                        -6-
Specifically, Dr. Brown explained that “[t]he conclusion in ‘98 and
in 2000 are the same. And in probably the most basic terms, the
[appellant] could not appreciate the rightfulness or the wrongfulness
of his conduct” because “[all] the data that we have available
indicates that he was suffering from the acute phase of schizophrenia
at the time of the alleged offenses.”

On cross-examination, Dr. Brown conceded that there were some
inconsistencies in the appellant’s version of events. Dr. Brown also
acknowledged that, on the day of the offenses, the appellant was in
sufficient control of his behavior to go into the bank where he had an
account, withdraw funds from his account, and, after the offenses,
submit to an armed, uniformed police officer. Finally, Dr. Brown
admitted that, during the 2000 evaluation, two tests showed that the
appellant was malingering to gain support for his insanity defense and
to show his innocence of the crimes charged. Nevertheless, Dr.
Brown maintained that the malingering was taken into account by the
team in their evaluation, and Dr. Brown unwaveringly asserted that
an insanity defense could be supported.

The second witness to testify for the defense was Dr. Mudiam, a
psychiatrist who worked at MBMHI and was a member of the
forensic team that evaluated the appellant in 2000. At the time of Dr.
Mudiam’s evaluation, the appellant was receiving antipsychotic
medication. Dr. Mudiam testified that the appellant was diagnosed
with “Schizoaffective Disorder and what that means is a person
sometimes in the course of the mental illness, in addition to the
symptoms that are primarily associated with schizophrenia, which are
like hearing the voices that are not there or feeling like people are out
to get them. The patients also suffer from associated symptoms of
what we call as either mania or depression.”

According to Dr. Mudiam, the appellant exhibited the features of
mania, namely elation and excess energy. He opined that the
appellant was “suffering from severe mental illness at the time of the
alleged events,” and, based upon the information he obtained, the
appellant “was not able to appreciate the nature of the wrongfulness
of the alleged act.”

Dr. Mudiam noted that, in addition to the facts regarding the
appellant’s account of his offenses, the forensic team also strongly
considered the statements of the arresting officer. Specifically, the
psychological report noted Officer Chapin’s comments that he


                                  -7-
                recognized that the appellant was suffering from a mental illness and
                that he knew “right away that this was going to be one of those
                cases.” The report also noted that, prior to the offenses, the appellant
                had two previous admissions to MBMHI. The admissions followed
                two incidents in which the appellant was apparently “acting bizarre
                on the streets” and was picked up by police after threatening to kill
                people. The appellant also reported hearing voices that only he could
                hear. Although Dr. Mudiam conceded that the appellant gave
                conflicting reports in 1998 and 2000 as to whether he heard voices at
                the time of the offenses, Dr. Mudiam reiterated his belief that an
                insanity defense could be supported.

                On cross-examination, Dr. Mudiam admitted that he did not meet the
                appellant until the 2000 evaluation, almost two years after the
                offenses. He agreed that assessing an individual’s mental state so
                long after the offenses is more difficult. He also noted that he
                received most of the information regarding the offenses from the
                District Attorney General’s Office. Additionally, in response to the
                State’s question concerning whether the appellant knew the difference
                between right and wrong, Dr. Mudiam testified that “[a]t the time he
                was seen in the forensic team [in 2000] he knew but not on the day of
                the alleged crime.” Dr. Mudiam explained that, at the time of trial,
                the appellant knew right from wrong and could control his behavior
                because, unlike the day of the offenses, the appellant was taking his
                medication and receiving mental health treatment.

State v. Claude W. Cheeks, No. E2001-00198-CCA-R3-CD, 2002 WL 1609743, at **1-6 (Tenn.
Crim. App. at Knoxville, July 22, 2002). The instant opinion solely concerns our reconsideration
of whether the appellant met his burden of establishing the affirmative defense of insanity by clear
and convincing evidence in light of our supreme court’s recent rulings in State v. Flake, 88 S.W.3d
540 (Tenn. 2002) (Flake I) and in State v. Christopher M. Flake, __ S.W.3d __, No. W2001-00568-
SC-R11-CD, 2003 WL 21788920 (Tenn. at Jackson, Aug. 5, 2003) (Flake II).

         A defendant may establish the affirmative defense of insanity if he proves by clear and
convincing evidence that at the time of the commission of the acts constituting the offense he was
unable to appreciate the nature or wrongfulness of his acts as a result of a severe mental disease or
defect. See Tenn. Code Ann. § 39-11-501(a) (1997). In both Flake opinions, our supreme court
concluded that “appellate courts in Tennessee should apply the reasonableness standard when
reviewing a jury’s rejection of the insanity defense.” Flake, 88 S.W.3d at 554; see also Flake, __
S.W.3d __, No. W2001-00568-SC-R11-CD, 2003 WL 21788920, at *15. The court further
concluded that this standard is “properly deferential to the finding of the trier of fact,” yet “does not
totally insulate the jury’s finding from appellate review.” Flake, 88 S.W.3d at 554. Moreover, the
court “explicitly reject[ed] the notion that the State must rebut defense proof of insanity with


                                                  -8-
substantial evidence.” Id. Applying this newly established standard of review, we conclude that we
are compelled to uphold the jury’s rejection of the insanity defense and affirm the appellant’s
convictions.

        In the instant case, the proof adduced at trial revealed that after making repeated withdrawals
of two dollars from his account at AmSouth bank, the appellant assaulted the victim outside the
bank, took the victim’s money bag, and fled. The appellant defied a concerned citizen who
attempted to stop his escape. However, when the appellant was approached by an armed, uniformed
police officer, the appellant submitted to the officer’s control without offering resistance. Upon
questioning, the appellant indicated that he committed the instant offenses because he was hungry.

        Dr. Brown testified that the appellant had been diagnosed with paranoid schizophrenia. Dr.
Brown stated that the appellant’s version of events contained some inconsistencies. Dr. Brown
concluded that the appellant “was suffering from the acute phases of schizophrenia at the time of the
alleged offense.” Based upon his findings, Dr. Brown opined that the insanity defense could be
supported. However, Dr. Brown conceded that two tests that the appellant took as part of his
evaluation reflected that the appellant was malingering in order to gain support for his insanity
defense and to show his innocence of the charged offenses. Dr. Mudiam noted that the appellant
gave conflicting reports during two evaluations concerning whether he heard voices at the time of
the offenses.

         Based upon the standard adopted by our supreme court in both Flake opinions, we conclude
that the jury could have reasonably found that the appellant appreciated the wrongfulness of his acts.
See Flake, 88 S.W.3d at 555. Therefore, based upon our standard of review, we are constrained to
conclude that we may not overturn the factual findings of the jury in the instant case. Id. at 554.

                                          III. Conclusion

       Accordingly, we affirm the judgments of the trial court.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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