Opinion
No. 02C01-9506-CR-00157.
Decided March 25, 1999.
SHELBY COUNTY, HON. BERNIE WEINMAN, JUDGE, (Direct Appeal — Reckless Endangerment and Attempted Second Degree Murder).
AFFIRMED.
FOR THE APPELLANT:
JOHN KNOX WALKUP, Attorney General and Reporter, EUGENE J. HONEA, Assistant Attorney General, WILLIAM L. GIBBONS, District Attorney General, REGINALD R. HENDERSON, KAREN COOK, Assistant District Attorney.
FOR THE APPELLEE:
DANIEL A. SEWARD.
OPINION
In this case the defendant, Darren Smith, was convicted by a Shelby County jury of two (2) counts of attempted second degree murder and four (4) counts of reckless endangerment. The trial court sentenced him to concurrent sentences of ten (10) years for each count of attempted murder and one (1) year for each reckless endangerment conviction. Following sentencing, the defendant filed a motion for judgment of acquittal or in the alternative a new trial. The motion alleged inter alia that the state failed to prove that the defendant was legally sane at the time of the commission of the offenses. The trial court agreed and entered a judgment of not guilty by reason of insanity on all charges. It is from this judgment that the state appeals. After a careful review of the record in this case, we affirm the judgment of the trial court.
I.
The defendant and Laura Moss were both police officers with the City of Memphis. The couple became involved in a romantic relationship which ended sometime in April, 1993. Apparently the defendant was angry over the break-up, and the relationship between him and Moss became acrimonious. The couple filed formal complaints against each other, and the defendant made several threatening phone calls to Moss' residence. On at least one occasion the defendant came to Moss' residence uninvited, despite repeated instructions to stay away from her. This led to a physical altercation between the defendant and Michael Hill, himself a police officer and Moss' romantic interest at the time.
On June 4, 1993, the defendant came to Moss' home to discuss a credit card statement with her. Moss did not have time to discuss the matter, but the defendant persisted in telephoning her all day. Sometime between 8:00 p.m. and 9:00 p.m., the defendant called Moss and told her that he was coming over to her house. Despite being told not to come, the defendant nevertheless had a friend take him to Moss' house. When Moss called the police, the defendant left on foot.
Later that night, Moss and Hill were in her bedroom watching television. Her three (3) daughters and a niece were playing in another bedroom. Suddenly, a shotgun blast came through the window of the room where Moss and Hill were located. The children began to scream and ran into the hallway. A second blast came through the kitchen window, a third shot was fired through the dining room window and a final blast splintered the front door. After the last shot, Moss and Hill were able to see the defendant run from the house and drive away. Police later recovered the shotgun from the defendant's parent's residence. The defendant confessed to the shooting when confronted by the police.
At trial, Dr. Robert Freeman, a psychiatrist who treated the defendant for depression, testified that a serious head injury caused the defendant to have problems with social interaction. Dr. Freeman opined that defendant was suffering from "temporary insanity" at the time of the offense. The doctor testified that there was a "possibility" that the defendant lacked "substantial capacity to appreciate the wrongfulness of his actions."
On cross-examination, the prosecution questioned Dr. Freeman regarding an incident prior to defendant's head injury where he punched out a window in Moss' residence and let himself in. Although the doctor testified that the head injury was a "large factor" in defendant's "temporary insanity," he stated that knowledge of the prior incident actually "strengthen[ed]" his diagnosis that defendant was suffering from post-traumatic stress disorder.
In rebuttal, the state introduced the defendant's statement to law enforcement authorities concerning the prior incident where he punched through the window at Moss' residence. Defendant was suspended for two (2) days from his police duties as a result of this incident.
At the conclusion of the proof, the jury found defendant guilty of two (2) counts of attempted second degree murder and four (4) counts of reckless endangerment.
Subsequently, the defendant filed a motion for judgment of acquittal or in the alternative a new trial, alleging that the state failed to carry its burden on the issue of defendant's sanity at the time of the commission of the offenses. The trial court found that the defendant presented sufficient proof to rebut the presumption of sanity, and the state presented no reliable proof in support of defendant's sanity. Therefore, the trial court set aside the jury's verdicts and entered a judgment of not guilty by reason of insanity. From the trial court's judgment, the state brings this appeal as of right pursuant to Tenn. R. App. P. 3(c).
II.
In pertinent part, Tenn.R.Crim.P. 29(a) provides, "[t]he court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information . . . if the evidence is insufficient to sustain a conviction of such offense or offenses."
A motion for judgment of acquittal raises a question of law for the trial court to determine. State v. Adams, 916 S.W.2d 471, 473 (Tenn.Crim.App. 1995). In making this determination, the trial court is concerned with the legal sufficiency of the evidence, not the weight of the evidence. State v. Adams, 916 S.W.2d at 473; State v. Hall, 656 S.W.2d 60, 61 (Tenn.Crim.App. 1983). The trial court must "look only at all of the evidence introduced by the State . . . take the strongest legitimate view of it in favor of the State, and . . . allow all reasonable inferences from it in the State's favor." State v. Hall, 656 S.W.2d at 61. This Court must apply the same standard when resolving issues concerning the grant or denial of a judgment of acquittal. State v. Adams, 916 S.W.2d at 473.
III.
Insanity at the time that an offense is committed is an absolute defense to a crime. The standard for proving a plea of insanity was established in Graham v. State, 547 S.W.2d 531 (Tenn. 1977), and was subsequently codified at Tenn. Code Ann. § 39-11-501(a) (1991), which provides:
Insanity is a defense to prosecution if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform that conduct to the requirements of the law.
A defendant is presumed sane; therefore, at the time of the instant offenses, it was the defendant who initially had to present evidence of his or her insanity. Spurlock v. State, 368 S.W.2d 299, 300 (Tenn. 1963). Once evidence had been presented which raised a reasonable doubt as to the defendant's sanity, the burden of proof shifted to the state to establish the defendant's sanity beyond a reasonable doubt. State v. Sparks, 891 S.W.2d 607, 615 (Tenn. 1995). "Sanity thus becomes an element of the crime." State v. Clayton, 656 S.W.2d 344, 346 (Tenn. 1983). To meet its burden, the state had establish:
(1) the defendant was not "suffering from a mental illness at the time of the commission of the crime," or
(2) the illness proved did not "prevent his knowing the wrongfulness of his act" and did not "render him substantially incapable of conforming his conduct to the requirements of the law he is charged with violating."State v. Jackson, 890 S.W.2d 436, 440 (Tenn. 1994) (quoting State v. Clayton, 656 S.W.2d at 351).
Effective July 1, 1995, the legislature amended the insanity statute, making insanity an affirmative defense whereby the defendant has the burden of establishing his or her insanity by clear and convincing evidence. Tenn. Code Ann. § 39-11-501(a) (Supp. 1995).
The state could meet its burden of proving sanity
through the introduction of expert testimony on the issue, or through lay testimony where a proper foundation for the expressing of an opinion is laid, or through the showing of acts or statements of the petitioner, at or very near the time of the commission of the crime, which are consistent with sanity and inconsistent with insanity.State v. Sparks, 891 S.W.2d at 461 (quoting Edwards v. State, 540 S.W.2d 641, 646 (Tenn. 1976)); State v. Jackson, 890 S.W.2d at 440.
IV.
Entry of a judgment of acquittal by reason of insanity is the appropriate remedy where the burden of proof on the element of sanity has shifted to the state, and the state fails to carry it. Many jurisdictions, both federal and state, adhere to the view that it is the trial court's duty to determine, as a matter of law, whether a defendant has presented sufficient evidence to put his sanity in question. See United States v. Davis, 772 F.2d 1339, 1343 (7th Cir. 1985); United States v. McCracken, 488 F.2d 406, 409 (5th Cir. 1974); United States v. Green, 468 F.2d 116, 118 n. 3 (4th Cir. 1972); Davis v. United States, 364 F.2d 572, 574 (10th Cir. 1966); Otney v. United States, 340 F.2d 696, 698 (10th Cir. 1965); Fitts v. United States, 284 F.2d 108, 112 (10th Cir. 1960); United States v. Horne, 304 F. Supp. 727, 730 (E.D. Tenn. 1969); People v. Hill, 934 P.2d 821, 826 (Colo. 1997);Commonwealth v. Sirbaugh, 500 A.2d 453, 460 (Pa. Super. Ct. 1985); State v. Day, 560 P.2d 945, 947 (N.M. Ct. App. 1977);People v. Johnson, 503 P.2d 1019, 1020 (Colo. 1972); McCracken v. State, 237 A.2d 87, 88-89 (Md. Ct. Spec. App. 1968). Although Tennessee case law is silent on this point, this Court agrees that the trial court should determine whether the defendant has presented sufficient evidence to shift the burden of proof to the state on the element of sanity. Furthermore, this Court will not overturn a trial court's determination in this regard absent a finding of an abuse of discretion.
Notwithstanding the jury's verdicts of guilt and implicit rejection of the insanity defense, the trial court found that the defendant in the present case had produced sufficient evidence to rebut the presumption of sanity. The trial court did not abuse its discretion in making this determination. As a result, the state had the burden to prove the defendant's sanity beyond a reasonable doubt. State v. Sparks, 891 S.W.2d at 615; State v. Clayton, 656 S.W.2d at 346.
Even though the defendant notified the state of his intention to present an insanity defense approximately five (5) months prior to trial, the state failed to present any expert testimony on the issue of defendant's sanity at trial. Instead, the state relied upon lay testimony concerning acts or statements of the defendant prior to and after the commission of the offenses. The victim testified that defendant threatened her and Officer Hill on several prior occasions. The state presented the defendant's statement concerning the prior incident where he punched through a window at Moss' residence. Furthermore, although the defendant testified that he could not remember committing the offenses, Officer Harvey Edingbough stated that the defendant admitted shooting into Moss' home shortly after the incident. However, while this testimony might be construed as being consistent with sanity, such testimony was not necessarily inconsistent with insanity. See State v. Sparks, 891 S.W.2d at 461; State v. Jackson, 890 S.W.2d at 440. Therefore, the state's evidence was insufficient to establish defendant's sanity beyond a reasonable doubt.
In this case we offer no opinion as to the defendant's actual mental state at the time of the offense. We are simply saying that under the applicable law at the time of the offense the defendant offered sufficient evidence in insanity for the trial judge to properly conclude that the burden of proof on this issue had shifted to the stated. However, the state made little effort to prove defendant's sanity beyond a reasonable doubt. Because the state failed to carry its burden on this issue, the trial court properly granted the defendant's motion for judgment of acquittal. Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ DAVID G. HAYES, JUDGE
___________________________________ LYNN W. BROWN, SPECIAL JUDGE
I am unable to join with the majority in concluding that the State's evidence was insufficient to establish the defendant's sanity beyond a reasonable doubt. For this reason, I would reverse the trial court's decision granting the defendant's motion for judgments of acquittal upon grounds of insanity and would reinstate the jury's verdict of guilt on all charges.
I find from the proof that the State has met its burden of establishing the defendant's sanity through the acts or statements of the defendant, at or very near the time of the commission of the crime, and that these acts are consistent with sanity and inconsistent with insanity. See State v. Sparks, 891 S.W.2d 607, 616 (Tenn. 1995); State v. Jackson, 890 S.W.2d 436, 440 (Tenn. 1994).
This case presents a classic example of the tragedies caused by spurned love. The theme is neither new nor novel and its ending predictable. The defendant and Ms. Moss endured a four year relationship which could be characterized as turbulent at times. The defendant's first recorded act of aggression toward Ms. Moss occurred in 1991. On this occasion, the two had argued and Ms. Moss had ordered the defendant to leave her home. The defendant, however, returned to her home where he broke out windows, resulting in injury to Ms. Moss, and forced his way into her home. The internal affairs office was assigned this investigation and, as a result of their report, the defendant received a two day suspension. Other complaints followed. Finally, in April 1993, Ms. Moss ended the relationship. Ms. Moss testified, "He was very angry with me for breaking up." Shortly thereafter, she began dating another police officer. The defendant began making threats to Ms. Moss. He was repeatedly told not to come to her home. These requests were ignored. On one occasion, he again entered her home uninvited and confronted Ms. Moss' friend which resulted in a physical confrontation between the two. On June 4, 1993, the date of the instant offenses, the defendant made three uninvited visits to the victim's home and had called her by telephone ten to fifteen times. On the first visit, the defendant delivered to Ms. Moss a torn-up credit card statement which the two had been arguing about. On the second visit, the defendant brought some flowers. Ms. Moss called the police who were en route when the defendant left. On the third visit, he returned to Ms. Moss' home armed with a 12 gauge shotgun loaded with slugs. During this visit, he fired four rounds into various windows in her home terrorizing the children and narrowly missing Ms. Moss and her male friend. Additionally, on this last visit, the defendant, upon entering Ms. Moss' driveway, struck her friend's car with his truck.
Following this episode of terror, the defendant returned to his mother's residence where the record suggests that he called the police. Upon arrival of the police, the defendant advised the responding officer, "that he had shot into Ms. Laura Moss' house." The officer testified, "I asked Mr. Smith with what. He advised me a shotgun. I asked him where was it. He told me it was in the back room." The shotgun was recovered from under the bed and the defendant was arrested.
The defense called, as an expert witness, Dr. Freeman, his attending psychiatrist. Dr. Freeman's testimony proved interesting and the following portions are particularly noteworthy.
Dr. Freeman: He [defendant] was suffering from a mental condition at that time.
Defense Counsel: Okay. And how would you term that in layman's terms?
Dr. Freeman: Temporary insanity is how we would describe it in layman's terms.
Defense Counsel: [D]id Mr. Smith lack substantial capacity to appreciate the wrongfulness of his actions?
Dr. Freeman: I would say so, that is a possibility.
Prosecutor: . . . Now as a qualified professional, can you tell me at what point he became temporarily insane?
Dr. Freeman: . . . I think the act is the point. The act of the shooting was the point of being insane.
Prosecutor: Are you saying that if he had not done that (shooting) that he would not have been insane?
Dr. Freeman: Well, I mean that's hard to say. I mean, I can say that a particular act is an insane act. Now, whether one has seeming insanity underneath throughout that time, I can say yeah.
Prosecutor: Now, you mentioned that he was depressed . . . isn't it possible . . . part of the reason about his depression were (sic) the fact that he had been arrested and was facing criminal charges?
Dr. Freeman: That could be part of the constellation of responses.
Additionally, the psychiatrist testified that a 1993 physical injury to the defendant's head "was a large factor" in forming his opinion that the defendant was "temporarily insane" at the time of the shooting. After being advised by the prosecutor that the defendant was committing acts of aggression against Ms. Moss in 1991, two years before he received the head injury, the question was then asked whether this fact would "have any effect on your opinion" as to insanity. Dr. Freeman replied, "That would strengthen my diagnosis."
Finally, it is observed that Dr. Freeman testified that it was possible that the defendant was insane in 1991 and again in 1993, however, it cannot be ignored that, during this same period, the defendant was performing his duties as a Memphis police officer and receiving special commendations for his work.
Once raised, the issue of a defendant's sanity is a question for the jury to resolve. See Spurlock v. State, 368 S.W.2d 299 (Tenn. 1963); see also Tenn.R.Crim.P. 29(a). Notwithstanding the jury's ultimate responsibility in making the sanity determination, there are at least three points during the trial when the trial court must determine whether the evidence is sufficient as a matter of law. First, the trial court must determine whether the defendant has presented sufficient evidence to put his sanity at issue. Second, the court must determine whether the State's rebuttal evidence is sufficient to make an issue for the jury on the defense of insanity. Third, in the event of a guilty verdict, the court must decide whether the State's evidence is sufficient to support the conclusion of the trier of facts as to the defendant's sanity at the time of the offense. See United States v. Collier, 453 F.2d 1173, 1176-1177 (5th Cir. 1972).
In the present case, I would concede that the defense did, albeit narrowly, present sufficient proof to create a reasonable doubt as to the defendant's sanity. See Sparks, 891 S.W.2d at 615. The next question is whether the State sufficiently presented evidence to rebut the defendant's claim of insanity to warrant the jury's consideration on the issue of sanity. Although both the kind and quantum of evidence presented by the State in rebuttal are important, the nature and quantum of evidence necessary to raise a jury question is determined in relation to the strength of the defendant's case for insanity. See United States v. McCracken, 488 F.2d 406, 409 (5th Cir. 1974). Thus, although the presentation of rebuttal expert testimony is preferred, it is possible for the State to meet its burden without relying upon expert testimony. Indeed, the State may sufficiently counter defense expert testimony:
by showing the incorrectness or inadequacy of the factual assumption on which the opinion is based, `the reasoning by which he progresses from his material to his conclusion,' the interest or bias of the expert, [and] inconsistencies or contradictions in his testimony as to material matters. . . .Mims v. United States, 375 F.2d 135, 143-144 (5th Cir. 1967).
Apparently this is the route chosen by the State in the present case. The State, in an effective cross-examination of the defense's expert witness, amply revealed the inaccuracies, the inconsistencies, and the incompleteness of Dr. Freeman's diagnosis. Although no expert witnesses were presented in rebuttal, the State's cross-examination of Dr. Freeman sufficiently rebutted the defendant's proof so as to create a jury question as to his sanity.
Once the issue of sanity is presented to the jury, the jury is allowed to consider both lay and expert testimony as evidence, and it may discount expert testimony as evidence which it finds to be in conflict with the facts of the case. Sparks , 891 S.W.2d at 616. Thus, the jury is free to weigh the relative strength of lay testimony against the relative weakness of expert testimony in arriving at their verdict. In reviewing the evidence, as we are required to do, in the light most favorable to the State, I find the State has met its burden and this case was properly submitted to the jury.
There is no evidence in the record of mental illness of the defendant prior to the commission of these crimes or afterward. Following four years in the U.S. Marine Corps, he became a Memphis police officer during which time he had received commendations for his service. The evidence at trial established that the defendant's action in attempting to murder his ex-girlfriend and her current boyfriend was motivated by anger and jealousy. The defendant had previously made threats against his victims and, on this occasion, the jury could have rationally inferred that he armed himself with the intent of carrying out these threats. His conduct was consistent with previous acts of aggression. Although at trial the defendant related amnesia as to the shooting, his admission to the arresting officer stands unrefuted. I find these acts totally consistent with sanity and inconsistent with insanity. For these reasons, I would affirm the jury's verdict.
The record further establishes that, on December 15, 1994, the defendant was found not guilty by reason of insanity with judicial hospitalization ordered. On April 13, 1995, the defendant was found competent by his treating psychiatrist, Dr. Freeman, and released.
____________________________________ DAVID G. HAYES, Judge