                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON
                                         April 10, 2003 Session
                                          Heard at Dyersburg1

              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



The defendant, Christopher Flake, was indicted by the Shelby County Grand Jury on two counts of
premeditated first degree murder for the shooting deaths of Mike Fultz and Fred Bizot. The facts
surrounding the shootings were not contested at trial. Instead, the defense focused upon establishing
the affirmative defense of insanity. See Tenn. Code Ann. § 39-11-501. The jury rejected the
insanity defense, however, and found the defendant guilty on both counts of premeditated first degree
murder. The defendant was sentenced to consecutive sentences of life imprisonment without the
possibility of parole. The trial court entered a judgment in accordance with the jury’s verdict, and
the defendant appealed, asserting, among other things, that the insanity defense had been established
by clear and convincing evidence and that the jury had erred in rejecting it. The Court of Criminal
Appeals agreed with the defendant, modified the verdict to not guilty by reason of insanity, and
remanded the case to the trial court for further proceedings in accordance with Tennessee Code
Annotated section 33-7-303. The State filed an application for permission to appeal arguing that the
intermediate appellate court had erred by reversing the jury’s verdict.

We granted the State’s application to consider this case in light of State v. Flake, 88 S.W.3d 540, 542
(Tenn. 2002) (“Flake I”), rendered after the Court of Criminal Appeals’ decision in this case. In
Flake I, this Court unanimously held that “an appellate court should reverse a jury verdict rejecting
the insanity defense only if, after viewing the evidence in the light most favorable to the State, the
appellate court concludes that no reasonable trier of fact could have failed to find that the defendant’s
insanity at the time of committing the offense was established by clear and convincing evidence.”
After reviewing the evidence in this record in the light most favorable to the State, a majority of this
Court is unable to conclude that no reasonable juror could have failed to find that the defendant’s
insanity at the time of committing the offenses was established by clear and convincing evidence.
Accordingly, that portion of the judgment of the Court of Criminal Appeals modifying the verdict

        1
          This case was heard as part of the April 10, 2003, S.C.A.L.E.S. (Supreme Court Advancing Legal Education
for Students) project in Dyersburg, Dyer County, Tennessee.
to not guilty by reason of insanity is reversed. As to the defendant’s claim that the trial court erred
in denying his motion to suppress, the judgment of the Court of Criminal Appeals is affirmed. The
judgment of the trial court is reinstated.

   Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed in Part and
                Affirmed in Part; Judgment of the Trial Court Reinstated

FRANK F. DROWOTA , III, C.J., delivered the opinion of the court, in which JANICE M. HOLDER and
WILLIAM M. BARKER, JJ., joined.

E. RILEY ANDERSON filed a dissenting opinion, in which ADOLPHO A. BIRCH, JR., J., joined.

ADOLPHO A. BIRCH, JR., J., filed a dissenting opinion.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; Thomas D.
Henderson and John W. Campbell, Assistant District Attorneys General, for the appellant, State of
Tennessee.

Leslie I. Ballin, Memphis, Tennessee, and Steven E. Farese, Ashland, Mississippi, for the
appellee, Christopher M. Flake.


                                                      OPINION

                                                Facts
       As stated, the primary issue in this appeal is whether the jury erroneously rejected the insanity
defense.2 In determining a defendant’s sanity, jurors may consider the facts surrounding the crime
as well as the testimony of lay and expert witnesses; therefore, the proof offered at trial is
summarized in detail hereafter.

       On March 19, 1997, the defendant, twenty-five-year-old Christopher Flake, applied to
purchase a Jennings Model J-25 automatic pistol at Guns and Ammo in Memphis, Tennessee. State
law mandated a background check and a fifteen-day waiting period. The defendant completed the
required paperwork, providing background information that indicated he was not addicted to drugs
or alcohol and had never been hospitalized or treated for mental illness. The application was
processed; the retailer received the Sheriff’s Department clearance for the defendant’s application;
and on April 4, 1997, the day on which the mandatory waiting period expired, the defendant returned
to Guns and Ammo and retrieved the weapon. The defendant completed another form, and in


         2
           Insanity was the primary issue at trial as well. In opening statements defense counsel informed the jury “[t]his
is not a case of who, cause we submit to you on this journey that you’re about to emb ark up on as jurors in this case, it
will be shown to you beyond a reasonable doubt as to who is responsible.”

                                                           -2-
response to specific questions, again indicated that he had not used drugs and had not been
committed to a mental institution. The next day, Saturday, April 5, 1997, the defendant committed
these murders.

        The defendant was a friend and part-time employee of the first victim, thirty-one-year-old
Mike Fultz. Angela Fultz, the victim’s wife, had no knowledge of animosity between her husband
and the defendant. The defendant was one of the last names she gave the police as possible suspects.
She said her husband was kind to the defendant, explaining that the victim hired Flake, often gave
him rides to work, and occasionally socialized with the defendant.

        Mike and Angela Fultz spent the day at their home on April 5, 1997. At approximately 7
p.m., Angela Fultz took a bath in the back of the house and left the television on in the adjoining
bedroom. Afterwards, she called for her husband to help with the laundry. She looked for him when
he did not respond and found her husband in the garage lying unconscious in a pool of blood. She
called for emergency assistance, believing he had fallen and injured his head. The medical
technicians discovered that Mike Fultz had been shot five times. Arriving on the scene at
approximately 7:55 p.m., Officer Jason Pagenkopf of the Shelby County Sheriff’s Department found
five .25 caliber shell casings inside the Fultzes’ garage.

        Prior to the shooting, Anthony Turner, a neighbor of the Fultzes, noticed a man in an
unfamiliar car parked near his residence. When the car remained in the same location for
approximately thirty minutes, Turner decided to approach the car and ask the man’s purpose.
However, as Turner approached, the car pulled away and parked in front of the Fultzes’ home.
Turner returned to his home, believing the man in the car knew the Fultzes. After the shooting,
Turner identified the car he had seen as that owned by the defendant and identified the defendant as
the driver of the car. Another neighbor, Bernard Leo Miller, was working in his garage that evening
when he heard what he believed to be five or six fireworks shots. A short time later, Miller saw a
light-colored car with metallic paint and tinted windows drive away from the Fultzes’ house.

        That same evening, between 7:55 and 8 p.m., the second victim, seventy- year-old Fred
Bizot, was shot in the parking lot of the Church of the Holy Apostle in Memphis. Bizot regularly
attended the 8 p.m. Alcoholics Anonymous (“A.A.”) meeting at that location. Testimony indicated
that Bizot had been active in A.A. for approximately seventeen years and that he was particularly
helpful and friendly toward younger members. At approximately 7:55 p.m., Robert Wilford Gragg
was walking through the parking lot of the church when he noticed Bizot “warmly” greet another
individual, but Gragg did not turn to look at this individual. Just as he was entering the church,
Gragg heard what he thought was a car backfire, and turning, he saw a “rackety” car go by the
church. Some ten minutes after the meeting began, another attendee walked in the back door and
said “Fred was laid out on the ground outside.” Bizot was unconscious and lying in the grass
between the parking lot and the church. Medical personnel discovered that Bizot had been shot once
in the chest.




                                                -3-
        The next day, Sunday, April 6, 1997, Turner Carpenter, a pastoral counselor at Central
Church in Memphis was shot. However, Carpenter survived the shooting and provided information
to the police that enabled them to identify the defendant as his assailant. Flake I, 88 S.W.3d at 543.
Acting on this information, Shelby County Sheriff’s Department Officer Robert Brandon Lampley
and another officer proceeded to the residence the defendant shared with his parents in Germantown.
About thirty minutes later, the defendant arrived and exited his vehicle. With guns drawn, Officer
Lampley and another officer walked toward the defendant, and one officer yelled, “Christopher.”
The defendant stopped, and as the officer approached, a man, who Officer Lampley later learned was
the defendant's father, walked out of the house and spoke to the defendant. Officer Lampley
holstered his gun, and after conducting a pat-down search, the officers handcuffed the defendant and
placed him inside the patrol car. Officer Lampley testified that the defendant cooperated but showed
no emotion during his arrest.

         After verbally advising the defendant of his constitutional rights, Detective Johnny Brown
asked the defendant if he knew why the officers were there. The defendant responded, “yes.”
Detective Brown then asked if the weapon was in his vehicle, and the defendant again responded,
“yes.” In response to further questioning, the defendant advised that the weapon was in the glove
compartment. Detective Brown then read a consent to search form to the defendant, and the
defendant executed the form, which was witnessed by two other officers. From the glove
compartment officers seized a loaded Jennings automatic .25 caliber pistol, and they also recovered
a shell casing from the right rear seat of the vehicle. When Detective Brown asked if he had attended
an A.A. meeting on Hickory Hill the previous evening, the defendant was unsure of the location, but
when Detective Brown mentioned the Church of the Holy Apostle, the defendant indicated that he
had attended the meeting. When asked, “Did you get in an altercation there,” the defendant
responded, “yes.” And, when asked, “What happened?” the defendant responded, “I shot the guy.”
Detective Brown said the defendant looked “tired” and showed no emotion.

        Detective Eddie Scallions of the Shelby County Sheriff’s Department investigated the
shootings. Detective Scallions executed a search warrant for the residence the defendant shared with
his parents. In the defendant’s bedroom Detective Scallions found an empty box of .22 caliber
cartridges, several live .22 caliber rounds, and a box for a Jennings Model J.25 pistol, which
contained the Guns and Ammo receipt. Detective Scallions also found prescription bottles
belonging to the defendant which contained Zoloft, Prozac, and Cylert. Some of the prescriptions
dated to more than one year before the shootings, but, based on the contents of each bottle, the
defendant had not regularly taken the medication.3

     Dr. O.C. Smith, head of the forensic pathology division at the University of Tennessee in
Memphis, performed both autopsies and testified about the victims’ injuries. Dr. Smith testified that


         3
           Detective Scallions found a Feb ruary 2 3, 19 96 p rescrip tion bo ttle for twice-daily Zolo ft, containing twenty-six
capsules, an Octob er 30, 19 96 prescription bo ttle for once-daily Cylert containing thirty-five tablets, a November 13,
1996 prescription bottle for three-daily Cylert containing twenty-eight tablets, and a November 15, 1996 prescription
bottle for once -daily Zoloft containing 12 9 tablets.

                                                              -4-
Fultz’s death was caused by multiple gunshot wounds to his chest and back, which struck his lungs,
heart, liver, and diaphragm, causing a great deal of bleeding into his chest cavity. Five bullets were
recovered from Fultz’s body. Dr. Smith testifed that Bizot’s death resulted from a single gunshot
wound to his chest which traveled from left to right, striking his aorta, lung, and diaphragm, causing
a great deal of blood loss which interfered with his breathing. One bullet was recovered from his
body. According to Dr. Smith, neither victim lived longer than four to five minutes after being shot.
Steve Scott, with the firearms identification unit of the Tennessee Bureau of Investigation (“TBI”),
testified that ballistics tests revealed that the bullets recovered from the victims’ bodies were fired
from the gun seized from the defendant’s car.

        The prosecution offered no further proof; however, the defense called several witnesses in
support of the affirmative defense of insanity. Michael Todd Musso, the defendant’s co-worker at
Cooper Moving Company, testified that he had worked with the defendant for over one year prior
to these shootings. Musso characterized the defendant as “just kind of out there.” Musso had
previously complained about the defendant’s poor work performance; however, on the day of these
shootings, Musso described the defendant’s work performance as “really bad.” Musso stated that
the defendant appeared unusually agitated and that he stopped to smoke five to seven times in the
customer’s presence, which was strange since Musso and Flake were being paid by the hour. Musso
also recalled that the defendant was particularly untalkative, speaking only when he needed a tool
and when he borrowed money for lunch. Musso remembered that the defendant ate very little food
after borrowing the money to purchase it and instead tore his hamburger into small pieces. At the
end of the day, Musso again complained about the defendant’s poor work performance and informed
their supervisor that he would not work with the defendant again. When Musso left, the defendant
was waiting outside their supervisor’s office.

         Testifying next for the defense was the defendant’s father, James R. Flake (“Mr. Flake”), who
graduated from law school in 1969 and has been a special agent with the Federal Bureau of
Investigation (“FBI”) since 1977. Mr. Flake recounted that at age three, the defendant experienced
serious medical problems which required the removal of a kidney and limited to some extent the
defendant’s activities. While Mr. Flake was reluctant to describe the defendant as “babied,” he
testified that both parents were very concerned about the defendant because of their fear that his
remaining healthy kidney would be damaged. Mr. Flake said the defendant was an exceptional child,
described as a “leader” by his teachers, until he began having emotional problems at age eleven or
twelve. Mr. Flake said the defendant then became a “follower,” talked very little, and had few
friends. The defendant’s academic performance declined, and he began having disciplinary problems
at school.

        During his freshman year of high school, the defendant and his father consulted a church
counselor, but the counselor indicated that he was not qualified to address the defendant’s problems
and suggested the defendant consult a psychiatrist or psychologist. Mr. Flake followed the
counselor’s advice and consulted a psychologist, Dr. Richard Luscomb, who treated the defendant
for three to four years. Mr. Flake and his wife attended the treatment sessions as well. The
defendant began drinking heavily during this time and became very depressed, staying in bed a lot,


                                                 -5-
and his academic performance continued to decline. The defendant was hospitalized for a sixty-day
period in 1988 after he came home drunk from his part-time job. After the defendant’s release, Mr.
Flake, his wife, and the defendant, attended A.A. meetings and other similar meetings six nights per
week, but the defendant’s condition did not improve. In 1989, the defendant voluntarily re-entered
the hospital for another sixty-day period. After being discharged, the defendant and his parents
attended A.A. meetings and a support group at the defendant’s high school for students with alcohol
and drug dependency problems, but his condition deteriorated. The defendant was angry, frustrated,
and depressed. In 1990, as a high school senior, he again voluntarily entered the hospital. He was
treated by three different mental health professionals, but Mr. Flake saw no improvement.

        After graduating from high school, the defendant enrolled at Northwest Mississippi Junior
College, but dropped out after one semester. According to Mr. Flake, the defendant became
frustrated, angry, and depressed because of his poor academic performance. The defendant then
enrolled at the University of Tennessee at Martin (“UT-Martin”). He shared a room with another
young man who also attended A.A. One of Mr. Flake’s friends, a retired FBI agent, taught in the
criminal justice program at UT-Martin, so the defendant enrolled in that program. According to Mr.
Flake, the defendant did “fairly well, academically” at UT-Martin, but he did not like the town and
came home on weekends. He was very upset that he was not accepted into a particular fraternity.
Although the defendant was depressed and angry to the point that he largely remained in bed on
weekends, he continued to regularly attend A.A. meetings while he attended UT-Martin, from
August 1991 to May 1993.

       After leaving UT-Martin, the defendant enrolled at Shelby State Community College and
attended from 1993 to 1995. However, he performed poorly, managing only a 1.8 grade point
average before dropping out of Shelby State. During this time, the defendant was under the care of
a psychiatrist, Dr. Melvin Goldin. However, Mr. Flake testified that he continued to be depressed
and reserved. The defendant also made comments such as “my head’s messed up,” “my mind’s
blank,” and “I don’t know who I am,” indicating that he had not known “who I am” since moving
from Baltimore to Memphis as a young child.

        In 1995, the defendant began treatment with Dr. Janet Johnson at Lakeside Hospital, but Mr.
Flake testified that by this time the defendant had no confidence that doctors or medication could
help him. In the fall of 1996, the defendant cut himself off from everyone, refusing to take telephone
calls and stating that his father was the only person he could trust. He was fired from one job for
fighting with a co-worker and lost another job because, after three weeks, he failed to learn the menu.
During this time, the defendant was enrolled in six courses at the University of Memphis, three of
these criminal justice courses, but he passed only two courses and withdrew from the remaining four
courses. During this time, the defendant’s academic skills seemed to disappear. Mr. Flake compared
the defendant’s handwriting to that of an elementary school student.

        Mr. Flake said the defendant’s behavior became increasingly bizarre in the months and days
leading up to the shootings. For example, a few months before the shootings, the defendant told Mr.
Flake that he did not trust his longtime A.A. sponsor and believed that he was running drugs from


                                                 -6-
Mexico. The defendant also expressed fear that another A.A. member was planning to beat him to
death with a baseball bat. At about this same time, Mr. Flake discovered a piece of paper on which
the defendant had scribbled, “Hazel Goodall, the first woman to hit me.” Hazel Goodall was the
defendant’s elementary school principal, at least ten years earlier.

        Several days later, the defendant informed Mr. Flake that he had caused a Florida plane crash
because he had traveled to Florida two years earlier. A few days later, the defendant remarked that
he had seen a former classmate at a service station and then whispered, “Buchanani, has the
answer.” When asked to explain, the defendant claimed that Buchanani had said that another high
school student and an elementary school teacher had “bad-mouthed” him, thereby preventing him
from being elected the most popular student in the school. After saying, “[t]he answer is getting
closer, I’m getting closer to the answer,” the defendant gave his father the former classmate’s
business card and emphasized the importance of his father keeping the card.

        The defendant also became convinced that a couple he had moved from North Carolina to
Memphis had taken the truck belonging to one of his A.A. friends who had moved from Memphis
to North Carolina. After mentioning that the couple and his friend had similar trucks, the defendant
commented that “something was wrong” and asked Mr. Flake to keep some paperwork from the
moving company. According to Mr. Flake, having a conversation with the defendant was very
difficult.

        In March of 1997, the defendant told his father that he knew who was responsible for the
Oklahoma City bombing, the 1993 World Trade Center bombing, and the Pan America airline
bombing. In explaining why he did not ask the defendant to disclose the identity of the responsible
party, Mr. Flake stated: “I was afraid to ask him. I wanted the specialist that he was seeing to ask
him who it was because I felt like that she would then know how to deal with his answer.” Also in
March of 1997, the defendant drove bare-footed, in a thunderstorm, to a convenience market during
the middle of the night, took a pack of cigarettes from the shelf, waved to the clerk, smiled, walked
out without paying for the cigarettes, and drove away. When the police arrived at the defendant’s
home to investigate the theft, Mr. Flake explained that the defendant was under the care of a
psychiatrist. The police indicated that no charges would be brought if the defendant paid for the
cigarettes, so Mr. Flake drove the defendant back to the market and insisted that he pay for the
cigarettes. The defendant was very angry and had no remorse for the incident, instead insisting that
he had been smoking for a long time, and that “they” owed him the cigarettes.

        As a result of this bizarre behavior, Mr. Flake arranged for the defendant to meet with Dr.
Janet Johnson on April 1, just four days before these shootings. On April 2, Mr. Flake received a
call from Dr. Johnson, who explained that she had been telephoned by a man who had seen the
defendant place an envelope in his mailbox. The envelope contained samples of the prescription
medication Prozac that Dr. Johnson had given the defendant during their meeting the previous day.
When confronted, the defendant informed his father that he had seen the man working under the
hood of a truck and believed that he was in trouble and needed the medicine. About this same time,
the defendant also set off a fire alarm at the University of Memphis, and when asked about this


                                                -7-
incident, he explained that the professor had changed the class assignment, that the class had been
in chaos, and that triggering the fire alarm had seemed to be the appropriate action. When Mr. Flake
asked the defendant what was causing him to do such strange things, the defendant looked at him
for ten seconds or more before replying that the opening of the new Wolfchase Galleria Mall had
caused his strange behavior. Mr. Flake testified that he was “petrified” by the look in the defendant’s
eyes. Believing that his son had “lost his mind,” Mr. Flake scheduled another appointment with Dr.
Johnson for April 3, 1997. At this appointment, both Mr. Flake and Dr. Johnson tried to persuade
the defendant to voluntarily commit himself, but he refused, saying “they” had never helped him
before and he believed everything was okay.

        Mr. Flake recalled that on the day of the shootings, the defendant left at his usual time to
attend the A.A. meeting and returned home at approximately 11:00 p.m. Upon hearing him return,
Mr. Flake asked if everything was alright, and the defendant responded “yes.” The defendant came
downstairs the next day, hugged and kissed his mother, ate breakfast, worked on his car, took his dog
to the park, grilled outside with his family, and made plans to watch a movie later that night. The
defendant left at approximately 5:30 p.m., and told his father that he was going to a meeting at
Central Church. Mr. Flake described the defendant’s demeanor as “[p]erfectly, fine. Came
downstairs, hugged and kissed his mother, that’s it, just a regular day.”

       After receiving a telephone call at approximately 6:20 p.m. from an unknown person at the
Shelby County Sheriff’s Department advising him that the defendant was a suspect in a shooting,
Mr. Flake looked in the defendant’s room and saw what he thought could be evidence. He then
returned to the kitchen without disturbing the evidence and waited for the defendant to arrive. He
met the defendant outside and advised him to cooperate with the police officers and allow them to
handcuff him. Mr. Flake said the defendant had a “blank look” in his eyes and on his face and was
“unmoved” during the arrest – not trembling or upset.

        On cross-examination Mr. Flake acknowledged that the defendant had been drinking alcohol
on and off since age twelve, when his emotional problems reportedly began. When the defendant
came home intoxicated at age fifteen, he attempted to strike his father, and the defendant’s first sixty-
day hospitalization came after this episode. At age eighteen or nineteen, the defendant physically
attacked his mother and was forced to move out of the family residence for a time. Mr. Flake also
acknowledged that the defendant had a gambling problem, losing approximately $1500 in a casino
at one point, which resulted in Mr. Flake terminating the defendant’s weekly allowance.
Furthermore, Mr. Flake admitted that the defendant had not been honest about his alcohol and drug
problems in the past, and he conceded that the defendant had initially lied about the stolen
cigarettes, maintaining that the market clerk had given them to him. Mr. Flake said he knew the
defendant had been considering purchasing a gun, but he believed the defendant had taken his advice
and abandoned the idea. Mr. Flake further acknowledged that the defendant had fired guns at FBI
picnics when he was very young, that the FBI teaches agents to aim for the “center of mass” – the
torso or chest area of the body – when firing a weapon, and that the victims in this case were shot
in that area of their bodies.



                                                  -8-
        As to the defendant’s mental state, Mr. Flake agreed that the defendant was “not all that
depressed” on April 6, 1997, the day after these shootings, describing it as a “good day” for the
defendant. Mr. Flake admitted that the defendant’s treating physician at the time, Dr. Johnson,
believed that he was an alcoholic and a drug addict. Mr. Flake further testified that the defendant
had told him he was no longer going to work for Mike Fultz because Fultz had sent him to a house
guarded by four or five dogs and because Fultz sank boats in the Gulf of Mexico to collect the
insurance proceeds. Finally, Mr. Flake testified that he had attended more than half of the
defendant’s treatment sessions, that the defendant had signed waivers allowing him to have access
to the defendant’s psychological records, and that the defendant had never reported hearing voices
until April 9, 1997, three days after his arrest for these crimes. Mr. Flake acknowledged that the
report was given only after his wife asked the defendant if he ever heard voices, to which the
defendant responded, “yes, they told me to shoot the people.” When Mrs. Flake asked how long he
had been hearing the voices, the defendant replied, “since I was in treatment.”

        Testifying next for the defense was Turner Carpenter, who was introduced to the defendant
by the pastor of his church, Central Church. Carpenter’s pastor described the defendant as an
alcoholic who had not drank in three years but had been unable to obtain serenity. Carpenter, a
pastoral counselor at the Central Church responsible for an outreach program for addictions and
dependencies, agreed to meet with the defendant. After the defendant made, but failed to keep,
several appointments, Carpenter suggested that the defendant attend the group dependency meetings
until a workable schedule for individual sessions could be arranged. Shortly before 6 p.m. on April
6, 1997, one day after Fultz and Bizot were shot, the defendant unexpectedly arrived at Carpenter’s
office and asked to meet with him. Carpenter agreed to meet with the defendant, but asked the
defendant to wait a short time until Carpenter concluded his meeting with another parishioner. The
defendant agreed, but appeared angry. Carpenter resumed his meeting, but just a few minutes later,
he heard the door in the outer office open and went out to see who had arrived. Seeing the
defendant, Carpenter nodded and turned to go back into his office. However, the defendant “leaped
out from the couch” and “screamed my name out, just as loud as he could scream it.” Carpenter
described the defendant, who was pointing a gun at him, as “really angry.” The defendant fired the
gun once, striking Carpenter in the hand. The bullet traveled through Carpenter’s hand and into his
lung, liver, and diaphragm. Carpenter survived the shooting and was able to give the police
information leading to the defendant’s arrest. Carpenter’s only explanation for the shooting was that
the defendant became angry that Carpenter was unable to meet with him when he arrived.4

        Dr. Melvin Goldin, a board certified psychiatrist, treated the defendant from February of 1991
to February of 1995, meeting with the defendant on seventeen or eighteen times occasions during
this period. Dr. Goldin testified that the defendant had been under the care of Dr. Richard Luscomb
since January of 1988, and that he remained under the care of a psychologist from 1991 to 1995. Dr.
Goldin noted that the defendant was hospitalized in 1988 due to “growing sadness, irritability, . . .
and some alcohol problems,” and again in 1989 and 1990 due to suicidal thoughts. At the initial


          4
              For this shooting, the defendant was convicted of attempted voluntary manslaughter. See Flake I, 88 S.W.3d
at 540.

                                                            -9-
meeting with Dr. Goldin, the defendant and his father reported that the defendant was having a great
deal of trouble with obsessions and that he was hostile toward his mother, swinging at her and
breaking things. Also at this initial interview, the defendant reported having homicidal thoughts
toward people who frustrated him. As an example, the defendant referred to an incident a few days
earlier where a woman honked her horn at him while he was driving. Dr. Goldin diagnosed the
defendant with obsessive-compulsive disorder. During his four years of treatment, Dr. Goldin
prescribed a variety of medications for the defendant, including Anafranil, Clomipramine,
Imipramine, Palamor, Nortriptyline, Norpramine, Prozac, and lithium, in an attempt to find the
medication that worked best for the defendant. Dr. Goldin testified that the defendant’s condition
fluctuated but that he experienced some improvement, particularly after he prescribed Anafranil.
Dr. Goldin recalled that at his last session, Mr. Flake thought the medication was not working and
should be discontinued, but the defendant disagreed, so the medication was not discontinued. Dr.
Goldin testified that the defendant was not functioning very well at their last meeting.

        On cross-examination, Dr. Goldin admitted that he referred the defendant to Dr. Johnson
because she specialized in treating addictions and dependencies; she was “tough”; and the defendant
needed a change of pace. Dr. Goldin also acknowledged that the defendant did not report auditory
hallucinations during his four years of treatment, and he did not diagnose the defendant with
schizophrenia during that time. According to Dr. Goldin, the defendant’s compulsions largely
related to his appearance. Dr. Goldin had not reviewed any records of the defendant’s treatment
since 1995 and did not offer an opinion on the defendant’s mental status at the time these offenses
were committed. However, when asked by defense counsel whether or not a person suffering from
schizophrenia knows right from wrong, Dr. Goldin responded, “unless a person is so totally
scrambled that he just has no contact with reality, he can usually tell the difference between right and
wrong. However the material that he’s basing his decision on might distort what he chooses to do.”


        Testifying next was Dr. Lynne Zager, a clinical psychologist and Director of the Forensic
Services Program at Midtown Mental Health Center. Dr. Zager evaluated the defendant pursuant
to a court order from October 17, 1997 to January 28, 1998, to determine his competency to stand
trial and his mental state at the time of these shootings. In conducting the evaluation, Dr. Zager
personally interviewed the defendant four times, and she reviewed the results of psychological tests
previously administered. Dr. Zager opined that the defendant suffered from paranoid schizophrenia,
a severe mental disease or defect. She also opined that he had not been able to appreciate the
wrongfulness of his conduct in shooting the victims. According to Dr. Zager, schizophrenia
sufferers experience false fixed beliefs, possible hallucinations, and judgment problems. She
recalled that the defendant had a number of delusional beliefs. For example, the defendant expressed
fear that television personality David Letterman was part of a conspiracy to cause him harm because
Mr. Letterman had on one occasion said, “Hi Mike, from Tennessee.” The defendant also thought
an inmate at the Shelby County jail was notorious serial killer Jeffrey Dahmer, and he believed
another inmate had stolen a letter written to him by his father and was plotting to harm his father.
The defendant claimed to hear voices and believed that his thoughts were being broadcast to other
people. When asked why he killed the victims, the defendant told Dr. Zager that one victim was


                                                 -10-
responsible for the 1993 World Trade Center bombing and the other victim was responsible for the
bombing of the Oklahoma City federal building. The defendant explained that he had killed the
victims to protect society, himself, and his family. When asked why he did not go to the police for
help, the defendant claimed that the police were part of a major conspiracy.

        Dr. Zager admitted that the defendant had a history of polysubstance abuse, alcohol and
marijuana in particular, but she said the defendant had indicated that he was sober when these
shootings occurred. Dr. Zager also acknowledged that during his ten years of mental health
treatment the defendant had failed to report auditory hallucinations and did not report hearing voices
until after his arrest, however, she said his failure to report hearing voices did not change her
diagnosis or her thoughts about his condition.

        On cross-examination, Dr. Zager admitted that the defendant believed the victims were
homosexual and said they made him feel uncomfortable because they were “huggy, touchy, feely,
kind of people.” Dr. Zager related that the defendant said he had a list of 140 names, that he had
been planning to kill them and that he did not believe he “would be caught.” Dr. Zager conceded
that the defendant’s score on the Minnesota Multi-Phasic Personality Inventory–Second Edition
(“MMPI-II”) was indicative of malingering, and she acknowledged that the defendant gave
inconsistent answers when questioned about when he began experiencing auditory hallucinations,
on one occasion saying the voices began after he was jailed and on another occasion saying he had
heard voices all his life. Dr. Zager also acknowledged that John Perry, the coordinator of mental
health services at the Shelby County jail, advised Dr. Zager’s team that the defendant was not really
sick and that he was “pulling one” on the evaluation team. Finally, Dr. Zager agreed that no tests
were conducted to determine whether the defendant had been drinking when these offenses were
committed, and she acknowledged that drug use can induce symptoms similar to those exhibited by
schizophrenia sufferers.

        Also testifying for the defense was Dr. Samuel Craddock, a clinical psychologist employed
at Middle Tennessee Mental Health Institute (“MTMHI”) to conduct forensic evaluations. Dr.
Craddock examined the defendant for a thirty-day period in November and December of 1997,
pursuant to a court order. During this time he met personally with the defendant on nine occasions
and administered a battery of tests to assess the defendant’s intelligence, personality, reasoning,
judgment, visual, and processing skills. Dr. Craddock testified that psychological testing revealed
that the defendant was within the average range of intelligence and possessed college-level reading
comprehension, but that his logic and reasoning skills were equal to that of a fifth-grader. Dr.
Craddock opined that these test results were consistent with mental illness and inconsistent with
malingering, explaining that malingerers generally experience deficits in both reading
comprehension and reasoning. As further support for his conclusion that the defendant was not
malingering, Dr. Craddock pointed to the defendant’s high score on a visual skills test and his score
on a test specifically designed to determine if a patient is malingering schizophrenia symptoms.
While Dr. Craddock admitted that the defendant’s score on the MMPI -II suggested a strong
likelihood of malingering or symptom exaggeration, he explained that the score could also be the
result of severe mental illness or random responses. Dr. Craddock also admitted that the defendant’s


                                                -11-
initial scores on the Personality Assessment Inventory (“PAI”) were indicative of malingering, but
Dr. Craddock had re-scored the test using upgraded software, and he opined that the revised scores
were consistent with paranoid schizophrenia. Dr. Craddock referred to the defendant’s expressed
delusional beliefs as further indications of this mental illness. For example, Dr. Craddock said the
defendant claimed to know who was responsible for the Value Jet crash in Florida, the 1993 World
Trade Center bombing, and the Oklahoma City bombing.

        Relying on the psychological test results, the defendant’s history and treatment records, and
the defendant’s performance in the psychiatric unit, Dr. Craddock diagnosed the defendant with
paranoid schizophrenia and opined that he had been suffering from this severe mental illness at the
time of these shootings. Having so concluded, however, Dr. Craddock acknowledged that the
defendant “had some test scores to say he might be malingering and I’m not going to rule out the
possibility, at any time, that he might be malingering.” Furthermore, Dr. Craddock was unable to
answer to a reasonable degree of certainty whether or not the defendant could distinguish between
right and wrong at the time he committed these crimes. Of the defendant’s perceptions Dr. Craddock
said, “Some things that he perceived would be right under our perceptions and other things would
not be.” Dr. Craddock gave the following example:

       If I were to ask Mr. Flake, “Is it wrong to shoot or assault somebody, can you get
       arrested for it?” Without hesitation, he can recognize the criminality of his alleged
       actions. However, as he saw the world, not as it existed, but as he believed the world
       to be, he thought what he was doing was morally justified and essentially it was
       appropriate actions.

        On cross-examination, Dr. Craddock acknowledged that the defendant’s scores on the PAI
and the MMPI-II were indicative of malingering and that when the defendant arrived at MTMHI, he
indicated he intended to plead “not guilty by reason of insanity,” stating, “I didn’t think I’d get
caught. I thought I was doing society a favor.” Dr. Craddock agreed that the defendant’s use of the
word “caught” indicated that he had an understanding of right and wrong and realized the shootings
were wrong. Dr. Craddock acknowledged that, despite ten years of prior mental health treatment,
the defendant had not been diagnosed as schizophrenic and had not reported auditory hallucinations
prior to his arrest. Dr. Craddock testified that the defendant had no good explanation for why he had
never told other mental health professionals about hearing voices, stating only, “No, I didn’t tell
them, I felt it was their job, that’s what they get paid for.” Dr. Craddock further related that the
defendant fears homosexuals, fears they will approach him because he is confused about his sexual
identity, and believed the victims were homosexual. The defendant also told Dr. Craddock that he
and Mike Fultz were initially friendly, but that he came to hate Fultz because the wages Fultz paid
the defendant were never enough. Furthermore, Dr. Craddock agreed that the defendant’s records
reflected criminal convictions for vandalism, malicious mischief, and driving under the influence
of an intoxicant and an arrest in 1992 for arguing with a bouncer at a nightclub. Finally, Dr.
Craddock acknowledged that the defendant reported he had used illegal drugs and alcohol since the
eighth grade, including marijuana, LSD, inhalants, and speed.



                                                -12-
         Testifying next for the defense was Dr. Rokeya Farooque, a psychiatrist employed by the
State of Tennessee at MTMHI. In November and December of 1997, Dr. Farooque evaluated the
defendant for a thirty-day period to determine his competency to stand trial and his mental state at
the time of these offenses. Dr. Farooque stated that during this time she saw the defendant once
every “two, three, or four days,” that the defendant did not receive any medication, that he reported
hearing voices, and that he experienced delusional thinking. The defendant also talked about
receiving messages through the television. She confirmed that the defendant believed that one
victim was responsible for the Oklahoma City bombing and the other was responsible for the 1993
World Trade Center bombing. Dr. Farooque stated that the defendant claimed that he was an FBI
agent and that he was doing society a favor by taking care of these terrorists. According to Dr.
Farooque, the defendant repeatedly said, “I did not do anything wrong.” At the end of the initial
evaluation, the forensic team, including Dr. Farooque, determined that the defendant was not
competent to stand trial. After the trial court found the defendant incompetent to stand trial, he
returned to MTMHI for ten months before his transfer to Western Mental Health Institute
(“Western”), a less secure psychiatric facility in Bolivar, Tennessee. Dr. Farooque treated him
during this period as well. Based upon her evaluation and treatment, Dr. Farooque diagnosed the
defendant with paranoid schizophrenia, which she described as a very serious mental disease marked
by auditory hallucinations, fixed false beliefs, disorganized affect, and negative symptomology. She
testified that the defendant’s history reflected a gradual decline in his mental health, characteristic
of schizophrenia sufferers. Dr. Farooque concluded that on the day of these shootings, the defendant
was suffering from paranoid schizophrenia, that he was not malingering, and that he did not
understand the wrongfulness of his conduct in shooting the victims.

        On cross-examination Dr. Farooque admitted that the defendant had not reported auditory
hallucinations prior to his arrest in this case, despite ten years of prior mental health treatment. She
also acknowledged that malingering is always a concern when a person does not report hearing
voices until after his or her arrest. She discounted the concern in this case, stating that the defendant
had always reported hearing voices while at MTMHI. Dr. Farooque admitted that the defendant had
given inconsistent answers to questions about when the voices began, and she recalled that the
defendant said he had not reported the voices prior to his arrest because no one had previously asked
him. Finally, Dr. Farooque acknowledged that the defendant had completed college level criminal
justice courses.

        Dr. John Aday, a psychologist employed at Western, observed the defendant several times
per week after his transfer from MTMHI, and he interviewed the defendant once every three months.
Dr. Aday and the forensic team at Western evaluated the defendant to determine his competency to
stand trial. While Dr. Aday concluded that the defendant was suffering from paranoid schizophrenia
and believed himself to be an FBI agent who was performing his duty by shooting the victims, Dr.
Aday concluded that the defendant was competent to stand trial in February of 1999, some two years
after the shootings. However, Dr. Aday admitted that the defendant still reports hearing voices,
although he describes the voices as less prominent and says he is unable to understand them. At the
time of trial, the defendant was being treated with Haldol, Zyprexta and Amitriptyline. Dr. Aday



                                                  -13-
opined that the defendant’s condition likely would not improve with further treatment. Dr. Aday did
not evaluate the defendant to determine his competency at the time these offenses were committed.

       Testifying next for the defense was Dr. Hilary Linder, a psychiatrist employed at Western.
Dr. Linder began treating and evaluating the defendant in November of 1998, after the defendant had
been declared incompetent to stand trial, with the goal of assisting the defendant attain his
competency. Dr. Linder opined that the defendant suffers from paranoid schizophrenia and is not
malingering. Dr. Linder also was of the opinion that the defendant was not able to appreciate the
wrongfulness of his conduct in shooting the victims.

        On cross-examination Dr. Linder conceded that despite ten years of prior mental health
treatment, the defendant had not been diagnosed as schizophrenic or reported auditory hallucinations
prior to his arrest. Dr. Linder indicated that the defendant had admitted past drug abuse and claimed
that he never thought to mention hearing voices until he was arrested because he believed everyone
heard the voices. Dr. Linder further indicated that the defendant gave varied reports on when the
voices began, at one point saying it began more than two years earlier and at another point saying
it began in early adolescence. Dr. Linder also acknowledged that the defendant tested positive for
amphetamines when he was admitted to Western in November of 1998 and that no follow-up tests
were performed to determine if the result was a false positive. Dr. Linder further agreed that the
defendant sometimes falls asleep in group meetings and that drugs such as Haldol and Zyprexa, if
overprescribed, can cause a patient to sleep excessively. Finally, Dr. Linder agreed that, when
observed, the defendant’s affect was blunted to flat and his mood was unhappy and depressed, but
when he was interacting, the defendant’s affect was moderately blunted to broad and his mood was
normal. Furthermore, Dr. Linder acknowledged that the defendant participated in recreational
activities at Western, that he enjoyed the bus rides where patients are driven through and around
Bolivar, but that he did not enjoy or participate in the dances, where male and female patients danced
together.

        The defendant’s final expert witness was Dr. John Hutson, a clinical psychologist hired by
the defendant’s family, who met with the defendant in the Shelby County Jail on April 8, 1997, three
days after the shootings. Dr. Hutson said he initially was struck by the defendant’s impeccable,
“male model” appearance, which is not typical of incarcerated, mentally ill individuals.
Nevertheless, Dr. Hutson said the defendant had a flat affect and was reluctant to speak with him
because of instructions from defense counsel to remain silent. The defendant freely spoke with Dr.
Hutson only after his attorney instructed him to do so, but according to Dr. Hutson, the defendant’s
thoughts were disorganized. Dr. Hutson reviewed the records of the defendant’s ten-year history of
psychiatric treatment, including in-patient treatment, and talked with some of the defendant’s treating
psychologists and psychiatrists. Dr. Hutson also administered several tests including the MMPI-II.
According to Dr. Hutson, the results of this test were indicative of schizophrenia, not malingering.
Dr. Hutson, who had evaluated over 10,000 individuals, described the defendant as one of the three
most disturbed criminal defendants he had seen in his career. Dr. Hutson opined that the defendant
suffers from schizophrenia, undifferentiated-disorganized type, and that because of this severe
mental illness, the defendant could not appreciate the wrongfulness of his conduct in shooting the


                                                 -14-
victims. According to Dr. Hutson, the defendant believed he was working for the government as an
agent or an enforcer when he shot the victims. Dr. Hutson also opined that the defendant has a
“pathological fear” that he is homosexual and that it would have been “extraordinarily dangerous,
at that time, if you were a man” to have touched the defendant.

       On cross-examination, Dr. Hutson admitted that the defendant expressed hatred for Turner
Carpenter, whom he shot on Sunday, April 6, 1997, because Carpenter was effeminate and touched
him. The defendant also told Dr. Hutson that he would have continued killing, had he not been
“caught” because he hated them. Dr. Hutson reiterated his belief “that any physical contact with Mr.
Flake would be very dangerous on any male’s part.”

         The defense rested at the conclusion of Dr. Hutson’s testimony, and the State offered no
rebuttal proof. The jury returned a verdict finding the defendant guilty of first degree murder,
thereby implicitly rejecting the insanity defense. The trial court entered a judgment in accordance
with the jury’s verdict. The defendant appealed, arguing in the Court of Criminal Appeals that he
had met his burden of establishing the insanity defense by clear and convincing evidence and that
the jury had erred in rejecting the defense. The intermediate appellate court agreed, and referring
to the intermediate appellate court decision in Flake I, stated, “[i]t is our view that if the defendant
proved the defense of insanity in the Carpenter case, the evidence offered here is even clearer and
more convincing . No rational trier of fact could have found otherwise.” Accordingly, the Court of
Criminal Appeals modified the judgment to not guilty by reason of insanity and remanded the case
to the trial court for further proceedings pursuant to Tennessee Code Annotated section 33-7-303.

       Thereafter, the State filed an application for permission to appeal, arguing that the Court of
Criminal Appeals erred in modifying the jury’s verdict. We granted the State’s application to
consider this case in light of the majority decision of this Court in Flake I.


                                        Insanity Defense
       We begin our analysis of the issue in this appeal with Tennessee Code Annotated section 39-
11-501, which provides as follows:
       Insanity. (a) It is an affirmative defense to prosecution that, at the time of the
       commission of the acts constituting the offense, the defendant, as a result of a severe
       mental disease or defect, was unable to appreciate the nature or wrongfulness of such
       defendant's acts. Mental disease or defect does not otherwise constitute a defense.
       The defendant has the burden of proving the defense of insanity by clear and
       convincing evidence.

        (b) As used in this section, “mental disease or defect” does not include any
        abnormality manifested only by repeated criminal or otherwise antisocial conduct.




                                                 -15-
       (c) No expert witness may testify as to whether the defendant was or was not insane
       as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact
       alone.

Tenn. Code Ann. § 39-11-501. As we recognized in Flake I, under this statute, the defense applies
only when the defendant has a severe mental disease or defect which results in the defendant’s being
“unable to appreciate the nature or wrongfulness of such defendant’s acts.” 88 S.W.3d at 550.
Furthermore, this statute squarely places upon the defendant the burden of establishing the defense
by clear and convincing evidence, and unlike prior law, the State has no obligation to offer evidence
establishing the defendant’s sanity. Id. Evidence is clear and convincing when “there is no serious
or substantial doubt about the correctness of the conclusions drawn from the evidence.” Id. at 551
(quoting State v. Holder, 15 S.W.3d 905, 911( Tenn. Crim. App. 1999), perm app. denied (Tenn.
2000)). Furthermore, this statute prohibits both prosecution and defense experts from offering
opinion testimony on whether or not the defendant was sane at the time the offense was committed,
declaring that the ultimate issue is “a matter for the trier of fact alone.” Tenn. Code Ann. § 39-11-
501(c); see also, Flake I, 88 S.W.3d at 551.

         In light of this statute, this Court held in Flake I that appellate courts in Tennessee should
apply a reasonableness standard of appellate review when evaluating a jury’s rejection of the insanity
defense. 88 S.W.3d at 554. While this is an appropriately deferential standard of review, it does not
completely insulate the jury verdict. Id. Specifically, we held that “appellate courts in Tennessee
should reverse a jury verdict rejecting the insanity defense only if, considering the evidence in the
light most favorable to the prosecution, 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. In so holding, we explicitly rejected “the notion that the State must rebut defense proof of
insanity with substantial evidence,” noting that the current statute clearly imposes no burden on the
prosecution. Id. However, we recognized that once the insanity defense is interposed, the
prosecution will likely attempt, in some manner, to counter the defense proof, either by expert
testimony, lay witnesses, or vigorous cross-examination designed to undermine the credibility of the
defense experts. Id. In determining whether the jury appropriately rejected the insanity defense, we
emphasized that appellate courts must consider all the evidence in the record, including the
defendant’s actions and words at or near the time of the offense and the lay and expert testimony.
Id. (citing State v. Sparks, 891 S.W.2d 607, 616 (Tenn. 1995); State v. Jackson, 890 S.W.2d 436,
440 (Tenn. 1994); Edwards v. State, 540 S.W.2d 641, 647 (Tenn. 1976)). Questions concerning the
credibility of witnesses, the weight and value of the evidence, as well as factual disputes raised by
the evidence, are for the trier of fact; appellate courts are not in the business of re-weighing the
evidence or re-evaluating credibility determinations. Flake I, 88 S.W.3d at 554 (citing Holder, 15
S.W.3d at 912). Considering the evidence in this record in accordance with these now settled
principles, this Court concludes that a reasonable trier of fact could have found the defendant failed
to show by clear and convincing evidence that, as a result of a severe mental illness or defect, he was
unable to appreciate the wrongfulness of his actions.




                                                 -16-
         First, the record contains evidence suggesting the defendant was not suffering from a severe
mental illness at the time of the offense. As much as two weeks and as little as one day prior to these
shootings, the defendant had the forethought to falsely answer questions regarding his prior mental
health treatment and drug abuse which, had he answered truthfully, likely would have precluded him
from obtaining the weapon used to commit these crimes. See also Flake I, 88 S.W.2d at 555. In
addition, as in Flake I, the proof showed that, while the defendant behaved strangely during the
weeks and months preceding these shootings, his behavior on the day after these shootings had been,
in the words of his father, “[p]erfectly, fine.” Mr. Flake described April 6, 1997, as a “regular day”
for the defendant, stating that he came downstairs, hugged and kissed his mother, ate breakfast,
worked on his car, took his dog to the park, grilled outside with his family, and made plans to watch
a movie later that night. While one of the defendant’s co-workers testified that the defendant’s work
performance was poor and his behavior strange on the day of these shootings, this co-worker
previously had complained about the defendant’s work performance and generally described the
defendant as “out there.” While the shootings were not expected, there is proof in the record to
suggest that the defendant had felt animosity toward the victims. Several witnesses testified that the
defendant was preoccupied with homosexuality. Dr. Hutson said the defendant had a “pathological
fear” of being homosexual and opined that it would have been “extraordinarily dangerous, at that
time, if you were a man” to have touched the defendant. The record also reflects that the defendant
said the victims made him uncomfortable because they were “huggy, touchy, feely kind of people,”
and that he suspected they were homosexual. Furthermore, the defendant expressed hostility and
hatred toward Mike Fultz because he sent the defendant to a house that was guarded by three or four
dogs, he sank boats in the Gulf of Mexico to collect insurance proceeds, and he refused to pay the
defendant well. While the defense proof suggested the defendant committed these crimes because
he believed the victims were terrorists and he an FBI agent doing a service to society, the prosecution
developed alternative explanations through cross-examination. Lending further credence to the
prosecution’s theory was testimony from Dr. Goldin that the defendant reported having homicidal
thoughts towards individuals who frustrated him and testimony from Mr. Flake that the defendant
had physically assaulted his mother and father in the past.

        Also, like Flake I, defense proof that the defendant suffered from a severe mental illness was
countered by testimony elicited on cross-examination suggesting that it was also plausible that the
defendant was malingering. As in Flake I, all the mental health experts offering an opinion testified
that the defendant suffers from schizophrenia. The proof is undisputed, however, that, throughout
ten years of prior mental health treatment, the defendant had not been diagnosed as schizophrenic
and had never complained of auditory hallucinations. Significantly, the defendant’s report of
auditory hallucinations following his arrest was not spontaneous but was in response to a question
from his mother. The defendant thereafter gave inconsistent answers as to when the voices began,
and according to Dr. Craddock, he had no “good” explanation for why he had failed to previously
report hearing voices, stating on one occasion that he had not previously reported the voices because
the mental health experts did not ask him and stating on another occasion that he did not report the
voices because he thought “everyone heard the voices.” Results of two psychological tests indicated
that the defendant was malingering mental illness, and even though the expert witnesses discounted
these results, Dr. Craddock refused to “rule out the possibility . . . that [the defendant] might be


                                                 -17-
malingering.” Furthermore, the mental health coordinator at the Shelby County Jail, who saw the
defendant on a regular basis after his arrest, believed the defendant was malingering. The proof also
showed that, before his arrest, the defendant had been enrolled in and completed criminal justice
courses at both UT-Martin and the University of Memphis. During his intake interview at MTMHI,
the defendant was familiar enough with the criminal justice system to advise Dr. Craddock that he
intended to plead not guilty by reason of insanity. Furthermore, according to psychological records
of the defendant’s mental health treatment prior to his arrest, he had a history of polysubstance abuse
and had lied to his parents about the extent to which he abused drugs and alcohol. In fact, Mr. Flake
testified that the defendant’s emotional problems began at age twelve, also the age at which the
defendant began drinking alcohol. Mr. Flake acknowledged the defendant’s treating physician at the
time of these shootings, Dr. Johnson, believed he was an alcoholic and a drug addict. Although the
experts testified that the defendant’s history of substance abuse had no impact on their evaluations
since he had been incarcerated and had no access to drugs, Dr. Linder admitted that the defendant
tested positive for amphetamines when he arrived at Western and no test was performed to confirm
this result was a false positive. Dr. Zager also admitted that no tests were performed to determine
whether the defendant was intoxicated at the time these offenses were committed, although she
testified that no information relating to the offenses indicated that he was intoxicated.

        Finally, notwithstanding expert proof to the contrary, the record contains proof suggesting
that the defendant realized his conduct was wrongful. With the exception of Dr. Craddock, the
mental health professionals who offered an opinion on the defendant’s competency testified that the
defendant had been unable to appreciate the wrongfulness of his conduct in shooting the victim.5
Dr. Craddock opined that the defendant was aware that killing is wrongful, but he opined that the
defendant felt morally justified in shooting these victims because he believed them to be terrorists.
However, the prosecution pointed out that the defendant did not report his successful elimination of
these “terrorists” to law enforcement authorities. While some testimony indicated that the defendant
believed the police were part of the conspiracy, other testimony indicated that the defendant trusted
his father, so the defendant’s failure to report the successful elimination of these “terrorists” to his
father, an FBI agent, is a factor the jury could have considered in rejecting the insanity defense.
Moreover, at the time of his arrest, the defendant appeared to realize he had committed a crime. The
defendant indicated that he knew why the officers were at his house, and in response to questioning,
he told them the weapon was in the glove compartment. When asked if he had an altercation at the
A.A. meeting, he again responded in the affirmative, and when further asked, “what happened,” he
responded, “I shot the guy.” Although the defendant showed little emotion and appeared “tired,” the
officers observed no bizarre behavior. After his arrest, the defendant complied with his attorney’s
instruction not to speak with anyone alone, refusing to speak to Dr. Hutson until receiving
permission from his attorney. Evidence suggested that the defendant had feelings of hostility toward
all the victims because he believed them to be homosexual, and hostility toward Mike Fultz in
particular because of his low wages and his belief that Fultz was fraudulently collecting insurance
proceeds. The defendant had previously reported having homicidal thoughts toward persons who


         5
        Neither Dr. Goldin nor Dr. Aday offered an opinion on the defendant’s mental status at the time these offenses
were committed.

                                                        -18-
frustrated him. The defendant had thought about purchasing a gun for some time, falsely completed
the paperwork so that he could obtain the gun, picked up the gun on the first day it became available,
and committed these crimes the very next day. When discussing these shootings with mental health
professionals, the defendant said that he had 140 names on a list, that he had intended to kill them
all, and that he did not believe he would be “caught.” Dr. Craddock agreed that the use of the word
“caught” indicates that the defendant recognized that his actions were wrongful. Finally, when asked
by defense counsel if a schizophrenia sufferer knows right from wrong, Dr. Goldin responded,
“unless a person is so totally scrambled that he just has no contact with reality, he can usually tell
the difference between right and wrong. However the material that he’s basing his decision on might
distort what he chooses to do.”

       It is appropriate to reiterate the following points made in Flake I:
       Where the proof is contested, appellate courts should rarely reverse a jury’s rejection
       of the insanity defense . . . . [A]ppellate courts are not fact finders, and reversal is not
       appropriate where the evidence might appear to us clear and convincing were we fact
       finders. Appellate courts do not re-weigh the evidence or re-assess credibility
       determinations. These tasks are within the province of the jury. While the proof in
       this record indicates that the defendant suffers from a mental disorder, such proof
       does not mandate a jury finding that a defendant is legally insane. Cf. Coe v. State,
       17 S.W.3d 193, 221 (Tenn. 2000) (“[T]he existence of a mental disorder does not
       automatically translate into a finding of incompetency to be executed.”); Reed, 997
       F.2d at 334 (“Insanity, for our purposes, is a legal term. We do not ask whether Reed
       is insane by psychiatric or psychological standards.”). In determining whether a
       defendant is insane, a jury is entitled to consider all the evidence offered, including
       the facts surrounding the crime, the testimony of lay witnesses, and expert testimony.
       While a jury may not arbitrarily ignore evidence, a jury is not bound to accept the
       testimony of experts where the evidence is contested. Indeed, this principle is
       explicitly reflected in the current statute which prohibits experts from testifying on
       the ultimate issue of the defendant’s sanity and reserves this issue for the trier of fact
       alone.

88 S.W.3d at 556. In reversing the jury’s verdict, the Court of Criminal Appeals’ opinion appears
not to have considered the evidence elicited by the prosecution through vigorous cross-examination.
The intermediate appellate court instead focused upon the State’s failure to offer rebuttal proof. As
noted in Flake I, the statute does not require the prosecution to offer rebuttal proof, although the
prosecution likely will counter defense proof by some means, including vigorous cross-examination.
After reviewing all the evidence in this record in the light most favorable to the State, this Court is
unable to conclude that no reasonable trier of fact could have failed to find that the defendant’s
criminal insanity at the time of the offense was established by clear and convincing evidence.
Therefore, that portion of the judgment of the Court of Criminal Appeals modifying the jury’s
verdict to not guilty by reason of insanity is reversed.




                                                  -19-
                                             Suppression
       The defendant argued in his brief to this Court that the trial court erred in denying his motion
to suppress because he was not mentally capable of knowingly and intelligently consenting to a
search or waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d
694 (1966). The State claims that collateral estoppel precludes the defendant from re-litigating this
issue. As support for this claim, the State points out that the claim was explicitly rejected in an
opinion on petition to rehear in Flake I, 88 S.W.3d at 561, that the parties are the same, and that the
evidence is the same. While collateral estoppel likely could be applied in this circumstance, having
thoroughly reviewed the entire record, we choose to address the defendant’s contention on its merits.

        "[A] trial court's findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). "Questions of credibility
of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are
matters entrusted to the trial judge as the trier of fact." Id.; see also State v. England, 19 S.W.3d 762,
766 (Tenn. 2000). As such, "the prevailing party in the trial court is afforded the 'strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.' " See State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978
S.W.2d 861, 864 (Tenn. 1998)). Applying these principles, we are of the opinion that the evidence
does not preponderate against the trial court’s finding that the defendant was mentally capable of
knowingly and intelligently consenting to a search and of waiving his rights under Miranda.
Accordingly, the defendant’s assertion that the trial court erred in denying his motion to suppress is
without merit.

                                            Conclusion
        Reviewing this record in the light most favorable to the State, this Court reverses that portion
of the judgment of the Court of Criminal Appeals modifying the verdict to not guilty by reason of
insanity. As to the suppression issue, the judgment of the Court of Criminal Appeals is affirmed.
The judgment of the trial court is reinstated. It appearing that the defendant is indigent, costs on
appeal are assessed to the State of Tennessee, for which execution may issue if necessary.




                                        _________________________________________
                                        FRANK F. DROWOTA, III,
                                        CHIEF JUSTICE




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