*1 J., HIGHERS, concurs.
TOMLIN, (W.S), participating. P.J. Tennessee, Appellee,
STATE Jr., Aрpellant. PHIPPS, David Willard Tennessee, Appeals Court of Criminal at Jackson. May *2 Michael Presson. penalty in did not the death
The state seek Phipps to life this sentenced prison. appeal: four issues on
Appellant raises court’s 1. Whether the trial comment post-trau- jury charge refusal requested by matic stress disorder error; the defendant was 2. whether evidence sufficient premeditation prove the element of be- doubt; yond a reasonable court 3. whether the trial erred structing “pitfalls” expert testimony; and the trial court in refus- whether erred ing present to allow charac- by refusing to instruct ter good character defen- request. dant’s instructions, hold that the taken We whole, fairly adequately failed to applicable submit the issues and law to the an inappropriate and amounted to com- judgment in ment on the evidence. The case is reversed and the case is for remanded trial. new
Facts appellant,
In the fall of David soldier, Phipps, a career to Saudi sent part Arabia as of the forces Desert Shield military occupational and Desert Storm. His specialty was that aof nuelear-chemieal/bio- logical-chemical warfare with an coordinator Barrett, Oliva, Lionel R. Jr. and John G. emphasis on decontamination. was re- He Nashville, apрellee. for sponsible providing appropriate for chemical Burson, Atty. Report- Charles W. Gen. & measures and counter-measures and served er, Gen., Gundt, Atty. Rebecca L. Asst. in a front line unit that was one of the first to Nashville, Radford, Atty. Robert G. Dist. Iraq. Appellant enter received a star bronze Gen., Snyder, Atty. Gen. and S. Vicki Asst. exemplary for Storm. his service Desert Huntingdon, appellee. for Arabia, inwas Saudi While wife, Ann, relationship entered into a Marcie OPINION Throughout with Michael Presson. WHITE, Judge. twelve-year marriage, ap- course their Appellant, Jr., ap- Phipps, pellant David had numerous Willard been aware Mareie’s peals was, relationships as of his conviction for with other men.1 He how- Phipps previously 1. Marcie testified she had times. been unfaithful her husband six or seven
ever, dark, neighbor “something” Michael In the one saw the existence of unaware yard to being dragged across a vehicle. until he the United Presson returned April, Although Marcie States response to a call at 4:51 disturbance *3 Phipps2 corresponded with her husband n .m., Lowe, County Henry Damon a Officer by- spoke him while he was overseas and with sheriff, deputy went to the scene. He found telephone, she did not reveal that she was parked in the a white Cutlass Oldsmobile man. involved with another male, driveway the appellant, and a white sitting keys The on driver’s side. were the appellant’s Within a month of return victim, ignition. The who still in the was States, had his wife informed him that she alive, of lying was on the seat the car.4 back living been with while he was over- Presson brutally appeared have sav- He to been and a seas that she wanted divorce. She and wearing only He agely beaten. was black their possessions then her out of moved Ly- was with blood. underwear and covered continued to communi- Phipps home. Marcie top ing on the victim was a blood-covered occasionally appellant, cate visited him with stick, handle, probably ax and one wooden an meals, matters, to financial shared discuss glove. glove A found black second black was Appel- and sexual relations with him. had The ax handle on the floor of the back seat. accompanied lant to a trial in which she her price tag Testing it. no had a on revealed her to plaintiff. Appellant implored was a gloves fingerprints. The were standard is- home, Approxi- move but she refused. back gloves.5 military sue work him, appel- mately wife a week after his left deputy appellant in the When the found attempted lant suicide. cаr, shirt, pants, his and shoes were covered Friday, May Phipps On Marcie blood, sweating profusely, he was and with- met work on appellant and at their home to appeared very he to be He was exhausted. gave appellant a check some She the bills. first, wearing in a At the a knife sheath. They lunch portion for bills.3 had her the driving as down appellant said that he was together Marcie and shared a bottle wine. fight stopped a and had the road he saw the Phipps p.m., about returned to left 3:00 emergency room. injured the man to the take victim, prepared home she shared with later, the officer that A few minutes he told p.m. supper, his and laid down until 10:00 thought man’s was David Pres- he name Phipps’ work when left for work. Marcie she living his wife had been son and that schedule, appellant, known to the was 11:00 Presson. During eve- p.m. a.m. her shift that to 7:00 gravel Appellant’s truck was located a ning victim on her break around visited across the street from the victim’s home lot stayed until 2:55 a.m. and 4:00 a.m. school buses. parked and was behind some 1st, truck not be seen from the victim’s approximately At 4:45 a.m. June could on truck neighbors awak- house but the view from the was the victim’s were several of Phipps trial, would re- highway At which Marcie by struggle. ened of a the sounds In the from wоrk. back they repeated thuds that sounded turn home described box, shovel, can, hitting gas tool truck were a though someone were a tree gloves.6 A shield, pair work neighbors and a pavement face with a board. The steps of against the front moaning. knapsack propped help, grunting, for heard cries trial, Phipps remar- 5.The victim's sister testified victim 2. At Marcie had the time been was known as Marcie Primm. the National Guard had ried and a member of gloves years. The actual source for several joint be- 3. was written on account The check determined at trial. never Phipps longing Marcie and the victim. She giving the the victim's name before inked out Parks, appellant’s, testi Bruce a friend of appellant did ink out the check to a number trees taken down fied he had address. up appellant yard cut that he and the had the truck were to The items in the branches. approximately a.m. died 7:00 at The victim shredding into County Hospital injuries. the branches mulch. Henry assist from head bar, weight nylon rope, killing young Iraqi the house contained a ed his soldier outside bags, garbage tape. and duet camp the suicide of an officer. Sol- diers who with the defendant testified served appellant deny beating did not Pres- being tension created thе constant son to He he went to death. testified that Iraqi anxiety the front and the line caused to wait for his return from house wife to They scud also inci- attacks.8 recounted two hope in the work he could convince her dents in which the had behaved Presson and to him. leave come back manner.9. unusual However, point, at some approached carrying knapsack.7 According house Dr. de- Craddock testified watching appellant, Presson was televi- *4 pression signifi- “of a sufficient was level to appellant the screen sion. knocked on judge- cantly thinking, reasoning, his affect jumped up, door entered. and Presson ment, well-being,” the and emotional and that glass appellant, at the ran threw a out a and “components post-traumatic of his dis- stress side door. Presson went car and to his order have lessened or his threshold thought Phipps going he was to leave. How- defending made him more sensitive to him- ever, Presson returned to the house with a protecting self and himself and the increased his Phipps stick in hand. Presson told over-reacting him real or likelihood of to a longer no Marcie was his and leave. Ac- to White, perceived Dr. other threat.” the cording Phipps, him Presson threatened agreed anxiety еxpert, appellant’s state stick. Phipps grabbed with the stick and the significantly think- was sufficient affect his struggle Although Phipps ensued. said Kenner, ing reasoning. testifying and Dr. had no memory that he clear the events defense, for the stated that defen- while the followed, he had no he struck doubt that insane, dant was not he was make a unable to many body blows and head Presson. calculated decision to murder someone. moving He body being remembered the and Auble, psychologist, While Dr. expressed body. the car the opinion appellant’s ability no on to formulate cross-examination, On Hixson tes- Richard intent, agreed she with the three ex- other murder, he, tified that two weeks before the perts appellant suffering that the was from appellant party the and a third had discussed major depression, anxiety, post- severe and body which the hidden in was syndrome. experts traumatic All ex- stress and the woods burned. pressed opinion appellant that the was experts Four testified as to the dissembling that he or truthful and was not Dr. mental state. Samuel and Dr. Craddock symptoms. faking any B. White Jackson testified for state and D. Dr. William Kenner Au- and Dr. Patricia I. TRIAL WAS THE COURT’S REFUS- appellant. ble testified for the four All ex- AL CHARGE THE ON TO JURY perts agreed that Phipps compe- David POST-TRAUMATIC STRESS DISOR- legally tent to stand trial аnd that he was not DER ERROR? However, insane at the time of the murder. experts agreed appel- all four also Appellant’s allegation first of error is suffering lant major depression and given by court instruction the trial post-traumatic syndrome. stress application weight appellant experiences post-traumatic improper testified to his stress disorder was during Operation agree. Desert includ- Storm which and constitutes reversible error. We Appellant knap- failing report superiors testified that the items in 9.In addition to his for his sack were own suicide which he intended young Iraqi, appellant with the the incident to threaten his wife refused to him. to return gun threw his into the sand when ordered Iraq after the remain in rest of his unit moved 8. These witnesses were unable to confirm totally out. viewed those Witnesses actions as appellant young Iraqi had killed the in hand to appellant out of for the con- character who was Appellant hand combat. said that he told exemplary outstanding sidered an soldier with an person experience, sergeant one of the who military record. of a heart later died attack. trial, deny the two
At did not com- murder. As to either of lesser murder, offenses, mitting plead nor did he insani- included state must have theory ty. was that at proven beyond His a reasonable doubt that the killing time intentionally he could not and did knowingly act was either committed, intent to com- formulate again you as were earlier in- first-degree mit murder. structed. rejected appellant’s request court The trial defendant has a constitutional “[A] theory for a instruction based charge complete to a correct and, giving pattern the case10 after Teel, law.” State v. S.W.2d on the structions elements (Tenn.1990) (citations omitted). judge A trial murder, including premeditation and deliber- jury on law properly should instruct the murder, voluntary ation, second-degree in governing issues raised the evidence manslaughter, following instruc- issued McAfee, troduced at trial. State v. tion: (Tenn.Crim.App.1987). was suf- The defendant contends that he gives judge the trial instructions that When fering from conditions known correctly, fully, fairly appli set forth the *5 disorder, major post and traumatic stress law, give error to cable it is not to refuse at time of commission depression the the special requested State v. Bo instruction. this giving of criminal rise to the offense hanan, (Tenn.Crim.App.1987), 897 charge post you I traumatic case. denied, pe to rm. major depression are stress disorder and charge only must the We review entire and charge. to a criminal Insani- not defenses whole, if, invalidate it when read as a it fails ty defense, however, may the defen- be fairly legal or to submit the issues misleads he at dant makes no claim that was insane jury re applicable the to the law. In as killing giving to this the time rise (Tenn. Elam, 738 174 Estate of case. 1987).
Immediately following above-quoted the struction, jury that: the court instructed the recognized special have Our courts given proven beyond a be if “fundamental” state must have instructions should
The required culpable charge to the the is one that is reasonable doubt the case. Where find- in nature” and “essential to state of the defendant before “fundamental trial,” give may degree charge failure to the ing guilty him of the offense of first fair Teel, 249; murder, the two includ- result error. 793 S.W.2d at either of lesser Lea) (13 Souey you out for in this 81 Tenn. ed offenses earlier set (1884) (“[P]arties prosecution ... you to a state charge. As were earlier instructed intentional, charge the to a correct of killing must have been an have the general principles applicable for of law premeditation act the deliberate done degree to a guilty of first character of the the defendant to be reasoning Jury the Requested at the time of offense Nо. scured his Defendant's Instruction court, reasonably rejected by ability as and the trial read and also affected his to be which was provoked. adequately follows: may not establish a de- While this evidence the defense is further instructed that The the would be found not fense wherein Defendant submitted evidence Defendant has offense, by you guilty any may it considered of be post- suffering from a mental condition known as necessary deliberating upon of the elements This should stress disorder. evidence traumatic Degree, Murder in the Sec- Murder in the First by you, specifically to in reference be considered Manslaughter, Degree, Voluntary are as ond and possessed nec- or not the Defendant the whether you. explained herein necessary essary premeditation for or malice him you you, I further instructed should As have of in the or Second convicted Murder First necessary of these find that the elements Degree. present, grades are the Defen- of homicide you should The is further instructed charge you acquitted as to that testimony dant must be expert and the consider condition post-traumatic Voluntary stress consider the crime of thereto in relation to disorder, along with relevant evidence the other Manslaughter as to whеther or not it relates arriving your ob- verdict. Defendant further mental condition of the Rejected charge, requested, applicable Capacity son v. law State — Diminished ease.”). Defense,” particular the facts of A 42 Md.L.Rev. the As Criminal (hereinafter (1983) at -, Md.L.Rev. defense essence testimony negate supra). use killing was that at time of he lacked rea, attempt appellant of mens as existence requisite mental state for ed, an affirmative and does not is not support he of murder. that defense acquittal is a failure result in unless there which, lay expert with fered intent for and for all to establish the offense contradiction, out indicated that was suf counterparts. United of its lesser-ineluded fering post-traumatic syndrome from stress (3d Pohlot, Cir.1987), 827 F.2d States v. major depression. The court instructed S.Ct. cert. U.S. the evidence offered did not Tennessee case law is L.Ed.2d constitute a defense and refused to instruct sparse scope of di applicability jury, requested, capacity Consequently, evidence. minished evidence could be considered on issue of authority we turn first to the wealth of proof requisite mental state. While jurisdictions understanding other for an accurate, technically court’s statement conceрt. upon we are called determine whether the case, determining sometimes As is instruction, whole, fairly advised taken capacity helpful is a what diminished is not jury. starting point. It is not an or affir- absolute issue, In order to resolve this we must Though frequently con- mative defense. first, questions: answer two under whether fused, synonymous is not permitted Tennessee law the to con- *6 responsibility. The with diminished distinc- type sider this of on the issue of significant. capacity Diminished tions are intent; so, secondly, whether negating refers to most often instructions, whole, proba- taken as a had the crime, pre- of such as mens rea a element excluding ble effect of appellant’s evidence of 903; or meditation malice. Id. at See Unit- jury’s mental state from consideration of Frisbee, 1217, F.Supp. ed States 623 1220 specific the element of intent? (N.D.Cal.1985). A of type second diminished below, For the we reasons discussed are capacity allows a defendant show a lack of to compelled questions to answer both in the only specific not intent to com- Consequently, affirmative. we offense, reverse capacity but mit the a lack of total opinion remand for a trial new but offer no any form mens rea as well. Because appellant’s on the of substanсe defense. extraordinary circumstances exist which a capacity would not
defendant have the permit rea, Pohlot, 903, A. Does law Tennessee the consider- any form mens F.2d at 827 ation of of for capacity evidence mental state is type diminished more aca negating purpose spe- form, element functional.11 In demic than either how ever, cific intent? capacity never used diminished is justification or an excuse for a crime. Rath Fortunately neither the nor state er, attempt prove that it is an the defen has, wrong as is often the dant, incapable requisite intent of the ly characterized contentions charged, crime is innocent of that crime but actuality, capacity” “diminished defense. In guilty one. well be of a lesser United capacity diminished is not a defense (11th Cameron, 907 1067 States F.2d culpability; absolves the accused from rath Cir.1990). er, it is a rule of evidence which allows the negate responsibility, exis introduction of evidence to Diminished the other hand, pure specific tence of intent when a is defense. It is based on the defendant is charged specific theory “John disease or with a intent crime. that as result of a mental States, generally Responsibility Children of a In the United mens rea is ished Dеfenses: Two activity. Marriage," by any showing purposeful satisfied 77 Colum.L.Rev. Doomed Arenella, (1977). Capacity Dimin- “The Diminished
defect,
accused,
though
negating
less
of evidence aimed at
guilty,
is
tation
understood,
“Properly
... not a
responsible
It
intent.
it is
for his acts.
allows
mentally
merely
dis-
“mitigate
punishment of a
at all but
rule of evidence.”
defense
Pohlot,
case where
at
See
42 Md.L.J.
abled but sane offender
F.2d
also
Morse,
is less
supra;
believes that the defendant
Undiminished
at
Confu-
counterpart who
culpable
Capacity,
than his normal
75 J.Crim.L.
sion
Diminished
Pohlot,
(1984).
Criminology
commits the same criminal act.”
&
7-9
829).
Arenella,
(quoting
supra
at
F.2d at
Institute does not men-
American Law
States,
Though rare in the United
an exam-
capacity”
the term “diminished
tion
responsibility
is
ple of the diminished
that:
states
Wolff,
People
found
Cal.2d
from
Evidence that the defendant suffered
There,
Cal.Rptr.
P.2d 959
a mental
or defect shall be admissi-
disease
the California court held that the defendant
prove
it
relevant to
ble whenever
is
be-
guilty
the state
the defendant did or did
have
abnormality prevented
him
cause
mind which is an element of the offense.
realizing
enormity
“the
of the evil.”
from
(Official
4.02(1)
A.L.I. Model Penal Code
Id.,
Cal.Rptr.
instead for the
intent
greatly
the use
the tradi-
1984
restricts
committing.
Evidence
capable
dant was
insanity
and
the use
tional
defense
abolishes
specific
a laсk of
intent
to demonstrate such
re-
capacity” and “diminished
of “diminished
equivalent
to establish
is not
in federal courts.13
sponsibility” defenses
Cameron, 907 F.2d
responsibility,
diminished
Moran,
F.2d 604
States v.
937
See United
Pohlot,
1061,
892.
insanity,
F.2d at
827
Cameron,
(4th Cir.1991); United States v.
(11th Cir.1990);
Thus,
1051
States
claiming
ca-
F.2d
United
907
defendant
(6th
Newman,
Cir.1989);
F.2d 88
responsibility,
full
v.
889
pacity contemplates
(9th
Brown,
14. The Brawner court
People
Mich.App.
that the use of
(1982);
Carter,
responsibility"
term "diminished
People
in diminish-
negate the existence
that even
“to the effect
struction
insane,
lesser
guilty
he could still
Tennessee,
not so clear.
the law is
impairment he
of mental
offense
because
analysis, Tennessee
detailed
Without
necessary
develop the
ele-
unable to
“the de
stated that
courts have on occasion
Id. at
premeditation.”
of malice and
ments
recog
capacity is not
fense of diminished
Court, in
Supreme
re-
Tennessee
398. The
Taylor,
v.
in Tennessee.” State
nized
instruction,
is the
ferring
said “[t]his
to this
(Tehn.Crim.App.), perm. to
S.W.2d
capac-
defense of diminished
denied, (Tenn.1982);
so-called limited
State v. Crosc
appeal
recog-
commonly
is not
ity,
it is
said
(Tenn.Crim.App.), perm.
which
up,
Id. The
Shelton, 854
recently,
More
not cite
and does
the instructions used
perm. to
(Tenn.Crim.App.1992),
its conclu-
precedent for
case law or other
(Tenn.1993),
court held
Id.
sion.
capacity “al
allegation of
that an
(Tenn.
Taylor, 645 S.W.2d
In State v.
evi
competent
to introduce
lows a defendant
Croscup
court cited
Crim.App.1982), this
im
dence,
testimony, of his
usually expert
*9
capacity instruction
refusing
diminished
in
a
that he was
to show
paired
condition
battery and armed
aggravated sexual
in an
intent, even
forming
criminal
incapable
a
robbery
stating again that
at 122.
Id.
not
insane.”
though he was
in
recognized as a defense
capacity was not
Moreover,
the blanket
recognized that
we
at 763.
Tennessee. 645 S.W.2d
rejecting
Taylor
Croscup
in
statements
In
subject
dispute.
decisions,
were
the
the doctrine
those
years after
Several
Supreme Court’s
Tennessee
to the lack
reference
alluded
Supreme Court
Tennessеe
decision,
stat
Taylor
we
holding in the later
precedent
analysis
paucity
of reasoned
state
Supreme Court’s
view the
“[w]e
ed:
Taylor, 771 S.W.2d
subject.
on the
ringing en
a
Taylor as less than
in
ments
387,
Taylor,
In
the defen-
murder,
rejection
day
Drye’s
dorsement of this Court’s blanket
wife
On
quite
the diminished
defense and we view made it
clear that she would not return
having
vitality.”
Davis
as
to him. Defendant went to the home of a
[v. State]
continued
pistol.
a
anoth-
friend and borrowed
He told
Id.16
going
er friend that he was
to kill both his
State,
decision,
Davis v.
a 1930
is the first
By
paramour.
subterfuge,
wife and
he
her
provide
a line of Tennessee cases that
a
staying.
discovered where his wife was
He
concluding
negate
basis for
that evidence to
and, entering
by
a taxi
the house
hired
the element of intent is
admissible Tennes-
door,
rear
shot his
wife two times. She
Davis,
Supreme
see. In
Court reduced
yard
ran into the
next door where she col-
second-degree
conviction from
murder
shortly
lapsed. She died
after her arrival at
manslaughter holding that the conviction for
hospital.
Id. at 11-12.
proof.
murder was not sustained
defense,
Although Drye
insanity
raised the
State,
Davis v.
161 Tenn.
28 S.W.2d
found that he was sane and convict-
(1930). Davis,
suffering
while
from the
first-degree
himed
murder. The Su-
that
victim
delusion
had “debauched” his
preme
upheld
finding
Cоurt
wife, gunned down the victim. The Davis
respect Drye’s sanity, stating,
with
howev-
Court reasoned that an accused who was
er,
although
“the defendant is not enti-
suffering
delusion,
per-
from an insane
like
acquittal
responsibility,
an
tled to
of criminal
acting
son
under extreme excitement and
opinion
we are
conviction of first
passion,
malice,
capable
could not be
degree
murder is sustained
the facts.”
essential element of murder.
Id. at 996.
Id. at 12.
Thus, while the defendant’s mental state did
Although
language
couched in the
of its
crime,
not excuse his
as the mental state of
day,
Drye
clearly relying
Court was
would,
insanity
it did serve to reduce the
negate
the mental state of the defendant to
offense for which he could be convicted. The
requisite specific
intent for
reasoning in
approved
Davis was
in Overton
length
murder. The Court considered at
State,
165 Tenn.
distinguishing, essential elements of first-de-
(1933).
gree
quoted
approval
passage
defining pas-
from an earlier case
upon
Drye
Davis was also
relied
“[a]ny
sion:
of the emotions of the mind
State,
181 Tenn.
S.W.2d
anger (q.v.), rage,
known as
sudden resent-
Drye,
remarkably
a case
similar to the
ment,
terror, rendering
incapa-
the mind
bar,
Supreme
case at
Court
reversed
(quoting
ble of cool
at
reflection.” Id.
first-dеgree murder
conviction because of
Winton v.
151 Tenn.
268 S.W.
sufficient evidence and remanded the case
(1925)).
The Court refused to decide
Id.,
for a
trial.
Drye
new
guilty
whether the accused was
of either
who,
was a veteran of World
I
after his
War
second-degree
manslaughter,
murder or
stat-
unsound,”
discharge
“mentally
honorable
as
ing
that:
government hospi-
was in and out of various
[wjhile conceding
deciding,
... but not
tals.
expert
Id. at 10. At trial an
testified
far
reason had
been so
dethroned
Drye
depres-
suffered from a “circular”
excusable,
killing
think
to render
we
sion, meaning
periods
that he would have
it clear that the defendant did not act with
remission when he could and did act normal-
coolly
premeditated
formed
delibera-
ly.
many
Id. at
Devoted to his wife of
tion which
an essential characteristic of
years, Drye
despondent
became
when his
degree.
murder in the first
wife,
as,
regard
described
“a woman without
vows,”
words,
for her marital
moved with another
Id. at 12-13.
In other
evidence of
man.
Id.
defendant’s mental state at the time of the
*10
1993),
skeptical
rejec
judge apparently gave
16. Shelton’s
view of the blanket
in
a
which
trial
prior
dealing
tion in our
cases
with diminished
requested
“favorable” instruction similar to that
capacity was noted in a more recеnt case. State
here.
Larry Kelly,
(Tenn.Crim.App.
mitted to the
instructions
State,
by
Casey
insanity,
v.
491
the defense offered con
the trial court.
fense was
denied,
(Tenn.Crim.App.),
negate
psychiatric
cert.
94
siderable
closing,
A defendant is also entitled to
ar
existence of intent.
In
counsel
upon request
which outlines
at
gued
instruction
the absence of mens rea.
Id.
894.
Souey
theory of
ease.20
in
defining insanity,
the defense
See
the trial court
After
(13 Lea)
“[mjental
State,
81 Tenn.
Noth
or
v.
structed the
disease
ing
exposition
short of a “clear and distinct
of
defect
not otherwise constitute a de
does
defect,
the law” satisfies a defendant’s constitutional
fense. ... A mental disease or
other
McAfee,
by jury.
to trial
unable
than one which renders Defendant
(Tenn.Crim.App.1987) (quoting
quality wrong
appreciate
S.W.2d 304
the nature or
(1868)).
acts,
Strady
45 Tenn.
of
... does not ... consti
fulness
Id. at 895.22 The trial court
tute a defense.”
did
In this
the instructions
a whole
give
general
instruction on mens rea.
did
exposition of the
give
a clear and distinct
Although
the trial court
law Tennessee.
that the in-
The Third Circuit concluded
correctly
instructed the
on
elements
of
given suggested that evidence
structions
murder,
first-degree
second-degree mur-
of
abnormality
was relevant
.the
der,
voluntary manslaughter,
the com-
insanity.
of
Id. Since
issue
evidence
of the “defense” of
ment on the non-existence
admissible under the
mental condition was
clearly
post-traumatic
did not
stress disorder
for the
Insanity Defense Reform Act of 1984
in Tennessee.
reflect
the state of the law
intent,
purpose
negating specific
Moreover,
suggested
it
that the evidence was
capable
confusing
court’s instruction was
impertinent. As such it served
exclude
Thus,
jury.
misleading the
Id.
theory
defendant’s
consideration
the Third
concluded that “the instruc-
Circuit
the case.
probable
had the
effect
tions as whole
insanity
Appellant
rely on an
de-
did not
excluding
of Pohlot’s mental abnor-
or on
affirmative defense.21 The
fense
jury’s
of mens
mality from the
consideration
case was that he
cornerstone
rea.” Id.
requisite
commit
did not have the
intent to
expressed by
Third Circuit is
The fear
Virtually
first-degree
all of his tes-
murder.
did
likely
more
in this case. Defendant
even
negating the
timony
directed toward
was
insanity.
judge
plead
reiterated
mur-
specific intent element
simultaneously
ad-
with his
fact to the
those schooled
the law
der. While
disorder and
post-traumatic
stress
vice
con-
able to discern the difference between
major depression
constitute defenses.
did not
testimony sidering expert
defendant’s
likely
juror
most
A rational
would therefore
complete
mental condition as a
mental state
conclude that the evidence on
considering it
to determine
charge and
since the defendant
should not be considered
has been
requisite
mental state
whether
to which it was
not claim the defense
did
subtlety
lost most
proved, that
would be
mental states them-
relevant and since the
jurors absent clear instructions.
were not defenses.
selves
Pohlot,
F.2d
United States
post-trau-
(3d
1011, 108
Cir.1987),
The trial court’s instruction
cert.
U.S.
major
(1988),
depression
the defen matic stress disorder
eration on stress jury many years. e.g., Giving ruling our on the instruction disorder for See State v. (Tenn.1983) (testimo issue, in Spawr, 653 404 we need not address detail the other S.W.2d However, ny delayed by appellant. three on stress disorder considered on issues raised State, matters, probation); remaining perhaps issue of Edwards v. 540 relevant on retri- (Tenn.1976) (defendant al, diagnоsed 641 must be considered. Vietnam); schizophrenic in after service State, jury 316, A. Must the trial court instruct the
Harvey v.
225 Tenn.
468 S.W.2d
(1971) (defendant
testimony
expert
that
be considered
suffering
731
from a disas-
determining
requisite
in
whether
by pressure
sociative state caused
and stress
Vietnam.).
mental state existed?
Supreme
Court has
weighing
expert testimony
deemed the
require
not
Tennessee law does
post-traumatic stress disorder to be a func
judge
jury
expert
trial
to instruct
that
Cone,
jury.
tion of the
665 S.W.2d
determining
testimony may
in
be considered
(Tenn.1984).
87
requisite
whether the
mental state existed.
bar,
only
holding
In the case at
is not so broad.
hold
since the
did Our
We
that,
ease,
plead
insanity
in the circumstances of this
it was
defense or offer other
defenses,
suggested
an attack on error to issue an instruction that
was
sufficiency
on defendant’s mental defects
evidence of intent as
required
determining
in
degrees
for the various
of murder
could
be considered
manslaughter.
requisite
mental state was
He had a constitutional whether
proved.
challenge
to' offer relevant evidence to
proof.
element
the state’s
If the
markedly
This
from two recent
ease differs
expert testimony
by appellant
offered
on that
by
In
v.
decisions
this Court.
both State
challenge proof
issue could not be used to
of Shelton,
(Tenn.Crim.App.1992),
The instructions on the elements of the circumstances the could one several determining pos insuffi- if the defendant offenses and reasonable doubt are consider required mental state. State v. cient this instance to overcome the effect sessed the Shelton, Rutherford, supra, at 121. In this erroneous instruction. Taken whole, jury charge given by confusing limit the the trial instruction which did not Supreme suggested Court. 23. The Third Circuit that an instruc- sanctioned the United States Pohlot, precluded considering (citing Oregon, F.2d Leland v. tion which L.Ed. 1302 evidence of mental state to ascertain whether the 343 U.S. S.Ct. (1952)). requisite proven mental state was would not be denied, (Tenn.1993), Davis, jury’s inquiry perm. was not to the rule background light adequate historical was de- instructions struction’s originates apparently 122-23.24 from an 1894 given. 854 S.W.2d at tailed. It Supreme remains valid law. Court case which nor neither Shelton Rutherford State, 94 Tenn. 28 S.W. See Wilcox implying that there an instruction (1894); 119 Tenn. Atkins disregard entirely. should the evidence (1907); 105 S.W. nothing requires in Tennessee law While (Tenn.Crim.App.), Howse, expert a trial court instruct *14 pe rm. determining testimony may in be considered validity Supreme Notwithstanding its exists, appropriate state whether the that has disallowed similar instructions Court that judge a trial must not issue instructions strongly” against expert “discriminate too excluding probable will have the effect of Anderson, testimony. v. Union Traction Co. relevant, probative, and admissible evidence (1922); 146 Tenn. 242 S.W. jury consideration on the element of Co., v. Travelers’ Ins. Tenn. Fisher intent. 328-29 S.W. jury consistently hold a trial court instruct the decisions B. Should While language expert testimony pit- with with caution” is “beset that the “received omit appropriate, the more recent decisions falls and uncertainties?” pitfalls uncertainties” “beset with appellant objected portion to a Givens, supra, language. State Donald expert instruction on witnesses. That Givens, in Thus, concluded slip op. at 5. we instruction, from the second edition of taken now, that “trial courts should and reiterate Instructions, Jury Pattern ad- the Tennessee testimony of charge jury that testimony expert “should vised pitfalls and expert witnesses is ‘beset with it “beset received with caution” since was be Id., op. slip at 6. uncertainties.’” pitfalls and uncertainties.” T.P.I.Crim. (2d 1985). Appellant contends that 37.31 ed. appellant Must the trial court allow C. edition the instruction found the third ap- evidence before present character phrases should have which eliminates those pellant testifies? (3d 42.02 ed. used instead. T.P.I.Crim. been 1992). attempted to introduce evi- appellant through character witnesses dence of his pattern instructions The Tennessee before he testified. during his case chief that, They just pattern instructions. are are objected appellant’s character The state Supreme Court or the not sanctioned takes the [he] “[u]ntil was not an issue Dulsworth, legislature. State objection sustained the stand.” The court appeal de (Tenn.Crim.App.), perm. from testi- prohibiting appellant’s witnesses nied, (Tenn.1989). responsi It remains “the until and fying appellant’s character about bility judge prepare of the trial ruling This appellant testified. unless supple revise[ ] or [and to] instructions error. if neces [previously printed forms] ]ment fully sary applicable to state the law order Rules of of the Tennessee Rule 404 Martin, accurately.” State counterpart reflect a its federal Evidence and 560, 564 n. 5 char view that compromise of the traditional In several is inadmissible. recently analyzed pro- evidence This court has acter provides for the the rule criminal contexts expert instruction at priety witness Givens, character evidence. No. limited introduction v. Donald issue here. exceptions allows the limited 01C01-9110-CC-00312, of those 31710 One 1993 WL introduce Nashville, 11, 1993), in a criminal ease to Feb. (Tenn.Crim.App., matically negated pas- malice. suggested that 24. The instruction in Shelton perception provocation and lack of auto- sion or attack pertinent of a character trait.” since “the State mounted continuous “[e]vidence 404(a)(1). Thus, credibility.” appears it may [his] Tenn.R.Evid. That evidence appellant offering “evidence of truthful through testimony char- be introduced ... character ... after attack” under Rule testify pertinent acter witnesses who about a 608(a). right Under Rule 608 has a through character trait or by any competent present that evidence testifying personally. the defendant Neil contingent upon That is not his' Cohen, Paine, means. Sheppeard, Don Sara Tennes- relinquishment priv- Fifth (2d 404.3, Amendment § see Law Evidence at 126-27 ilege. 1990); ed. McCormick Evidence (J. 1992). ed., Strong 4th ed. It is not Similarly to find even the court were necessary for the defendant to take the stand character for truthfulness being present before allowed to evidence of a support- had not been attacked so as to allow pertinent character trait. Id. Character ev- 608, appel- ive character evidence under Rule pertaining idence to the defendant present opinion lant was still entitled to presented by others but must be in the form reputation concerning “pertinent *15 reputation opinion testimony. Term. through character trait”25 character witness- 405(a). Thus, inquiry R.Evid. for the testimony through es or his own under Rule court is not whether defendant has testified “pertinent Introduction of evidence of but is whether the evidence offered concerns open character trait” would the door to re- “pertinent character trait.” through prosecu- buttal the claimed trait tion evidence.
In the context of criminal ease the only We havе discussed issue for clari- “good accused is entitled to offer evidence of necessary fication should it become at retrial. ... tending character as [the to show that ruling, In the context of this the court’s accused] would not commit a crime” even incorrect, though appellant. offers no relief to testify. testifying the accused does not “[I]f proffer No of the excluded evidence was good [the witness accused] show by appellant by made which we can reputation character and in support of the proposition determine whether the evidence offered was testimony that [the is accused’s] “pertinent admissible as either character jury.” entitled to full faith and credit pursuant trait” evidence to Rule 404 or as McKinney v. denied, (Tenn.1977) rehabilitative evidence of after (Tenn.Crim.App.), truthfulness cert. added). Further, appel- attack under Rule 608. (emphasis eventually testify lant chose to but still de- Quite separate from the issue of the present clined to the character evidence. introduction of character evidence as sub Thus, appellant provide has failed to an ade- proof impeach stantive is its introduction for quate appellant of this record for review purposes ment under That Rule 608. rule issue. reputation opinion allows evidence of a witness’ untruthfulness and to truthful D. Was there sufficient evidence to convict 608(a). ness after attack. Tenn.R.Evid. murder? being impeached When the witness is the Because we have reversed this case and accused, procedural safeguards required. are trial, remanded for a new we need not en- (b)(3). Id. at gage lengthy in a discussion of the sufficien- appellant argues cy
In the case before us that of the evidence. We have reviewed the light he should have been allowed to introduce most favorable to the prosecution evidence of his character for truthfulness as we are to do and pertinent depends minority permitted 25. What is a character trait the courts the use of the nature of the case. general good majority character and that the only specific view traits were admissi- Wigmore and others have said that at common ble. general law the accused could introduce either Graham, Jr., Wright & Federal good Charles Kenneth character or evidence of the trait charged_ Practice and Procedure: Evidence relevant to the crime McCor- mick, hand, on the other insisted 382-83 inking have conсluded that the evidence more wrote a check out the the defendant leaving than sufficient to victim’s sustain verdict. Jack- name but visible the address. Virginia, p.m. commenting left son 443 U.S. 99 S.Ct. She at 3:00 after (1979); 13(e). Tenn.R.App.P. go working L.Ed.2d 560 had she home to rest before p.m. until 11:00 7:00 a.m. The defen- stay dant asked her to She she refused. CONCLUSION testified her further victim visited judgment trial court is re- during her break at work and left for home versed, and the case is remanded for new at 4:00 a.m. rulings trial accordance with the in this opinion. Flood, Larry Elaine
Flood,
Mary
Solmon was consistent that
TIPTON, J.,
1,1991 they
a.m.
between 4:00 and 5:00
June
concurs.
were awakened
at the house
activities
CORNELIUS, Jr., Special
ALLEN R.
across the
from the
next
street
Floods and
Judge,
dissenting opinion.
files
Mary
According
door to
Solmon.
to these
neighbors
fight
there was
at the
intense
CORNELIUS, Jr., Special
ALLEN R.
house
as the
it was
identified
victim’s. While
dissenting.
Judge,
yet daylight,
Mr. Flood related
respectfully
scholarly
I
dissent from the
through
was able to
into the far
see
door
opinion
by Judge
authored
White and
(of
living room
victim’s
corner of the
Tipton
Judge
which
concurred.
house)
figures fighting.
two
He saw
saw
*16
began
plea
This trial
with the defendant’s
door,
them run
out the
one ahead
n
guilty.
of not
me,
“help
yelling,
other. The first man was
please help
someone
me.” The two went to
my oрinion
the' direct evidence over-
home. Mr.
not see
Solmons’
Flood could
whelmingly
a most
established
brutal and
“beating
on the
Solmons’ door
heard
points
atrocious homicide. The evidence
un-
porch,
hollering
screaming,—
and
—and
intentional,
erringly
having
to this
been an
know,
quit,
then,—”
it—then
—
deliberately premeditated killing of another
being.
human
T.C.A.
39-13-202.
Mrs. Flood called the Sheriff’s office and
relayed
seeing
her husband
and
what
was
judge,
accept
anAs
intermediate court
I
hearing. She too heard the blows on two
Brown,
holding of
if hit-
occasions and described
sound as
(Term.1992)
requires that
which
to estab-
ting
pavement.
a
or the
tree
degree
premeditated
first
kill-
lish
deliberately,
ing must also
done
have been
placed
Mrs.
5:30
Solmon
time at about
reflection,
coolness and
with
than
with
more
began beating
a.m.
a man
on her door
when
split-second
intention.
saying, “help, help,
beating
he is
me to
minutes,
about
she
death.” This lasted
ten
May
that on
This record establishes
took her
the house.
children
rear of
informed him
1991 the defendant’s wife
police arrived
out and
When the
she went
leaving
she
she was
him and that
was inter-
saw the
her house. At the trial she
front of
appear
in someone
It does not
ested
else.
bloody
identify
picture
able
her
was
directly
that shе
told her husband the name
front door.
paramour
address of her
with whom she
living.
was
The
to arrive
the scene was
first officer
on
approached
house
Phipps
that she had
the Damon Lowe. As he
Mrs.
testified
met
May
at their
home on
he looked to the house where he observed
former
entering the
of a
prior
financial
white male
driver’s side
1991 to work
their
affairs.
driveway.
parked in the
agreed to return at the end of the month white Oldsmobile
She
driveway
May
pulled
noticed
at defendant’s home He
into
and on
arrived
pay
porch of
house direct-
in Dover about
in the afternoon to
the front door and
1:00
ly
his
covered
blood.
have
and the victim had
left were
bills and
lunch. She
on its
door and all
joint checking
on which she white car had blood
front
opened a
account
person,
he could
one
5:00 a.m.
approximately
see was
later identified were awakened
Phipps.
the activities at Mrs. Solmon’s. Their testi-
mony
neigh-
was consistent with that of their
Phipps
going
Officer Lowe asked
what was
bors.
Phipps replied
gentle-
on.
that there
awas
trying-
man in the car that he was
to take to
experts
heard the
room,
emergency
(Phipps)
he
had
—that
defense,
argu-
for both the state and the
driving
been
down the road and saw a
attorneys
ment
as well as the court’s
fight,
man,
beating
someone was
—that
charge,
then retired to deliberate. The
stopped
help
and he
him. Officer Lowe
returned to the courtroom with its verdict of
looked in
car
and saw the man later
guilty
degree,
of murder
the first
which
identified as Mr.
Presson was
Presson.
accepted
approved by
the trial court.
except
pair
naked
for a
of black bikini under-
record,
my
From
review of the
I find that
wear. He was covered with blood and some
evidence;
circumstantial,
direct
both
grass. Officer Lowe could see Mr. Presson’s
overwhelmingly
any
is
sufficient for
rational
portion
forehead and that a
of his brain was
beyond
trier of fact
to find
a reasonable
exposed. Lying
top
leg
hip
of his
guilty
doubt that
this defendant
area
sledge-ham-
was a wooden stick
like
intentional, deliberately premeditated mur-
split
mer handle which was
and under one
degree
charged.
der in the first
for the crime
glove
black
covered with blood. Later the
plead insanity,
any
He did not
nor did
glove
other
was found on the back floor-
experts
him
find
entitled to such a defense.
board of the Oldsmobile. Lowe asked
Virginia,
See Jackson v.
443 U.S.
Phipps about his automobile and
told it
(1979);
S.Ct.
Investigator Riggins, of the Sheriffs office dissent; consistently testified with the other I, state wit- therefore, questioned nesses. He was more in detail
regarding the location of the defendant’s
truck and the Riggins victim’s home. Mr.
also described the items found inside the
defendant’s truck. Lindy wife,
Mr. Patsy Walker and his Walker, lived They next to the Solmons.