Criminal Justice Section November 1998 Newsletter Articles

 

INSANITY DEFENSE REFORM: GUILTY BY REASON OF MENTAL ILLNESS
by W. Mark Ward, Editor

Letter from the Chair, Jim Milam, Chairman, Criminal Justice Section, 1998–1999

Supreme Court Update by W. Mark Ward

Last year, Representative Stancil Ford from Morristown introduced before the Tennessee Legislature H.B. 2956, which proposes to amend our current insanity defense law to allow a new verdict of "guilty by reason of mental illness." The Bill is currently under consideration by a sub-committee of the House Judiciary Committee and has been deferred until January 1, 1999. The purpose of this article is to solicit from the membership of the Criminal Justice Section comments regarding Representative Ford’s proposed legislation. Comments, pro and con, may be sent directly to the editor for inclusion in the next edition of this newsletter.

Section 2 of the Bill provides, in part, as follows:

In any criminal case in which the defendant asserts a defense of insanity, the defendant may be found "guilty by reason of mental illness" if the trier of fact finds beyond a reasonable doubt that:
(1) The defendant is guilty of an offense;
(2) At the time the offense was committed the defendant suffered from a severe mental disease or defect; and
(3) The defendant, notwithstanding his mental condition at the time the offense was committed, was not legally insane.
Section 2 further
provides:

A defendant found guilty by reason of insanity1 may receive any sentence authorized by law for the offense for which the defendant was convicted. If the defendant is sentenced to a term of imprisonment, such defendant shall undergo further evaluation and be given such treatment as is psychiatrically indicated. Treatment may be provided by the department of correction or by the department of mental health and mental retardation under the provisions of Tennessee Code Annotated, § 33-7-303. Except as provided in this act, the consequences of a conviction based upon a verdict or plea of guilty by reason of mental illness shall be the same as if the defendant’s conviction was based upon a verdict or plea of guilty.
THE CURRENT LAW

Under current law, juries who evaluate the criminal responsibility of a mentally ill defendant have three possible verdicts: guilty, not guilty, and not guilty by reason of insanity. In order to return a verdict of not guilty by reason of insanity, the jury must find that the defendant qualifies under the legal test of insanity. That stringent test excuses criminal conduct only when it is the result of mental illness which renders the defendant unable to appreciate the wrongfulness of his conduct. If a defendant has sufficient mental faculties to know that he is committing a wrongful act, he is criminally responsible no matter how serious his mental illness. As a result, a defendant may suffer from serious mental illness which renders him totally incapable of conforming his conduct to the requirements of the law and still not meet the legal test of insanity.
Prior to 1995, Tennessee’s insanity defense law required the prosecution to prove the sanity of the defendant beyond a reasonable doubt. In 1995, the law was amended placing the burden of proving insanity upon the defendant by clear and convincing evidence. This change in the burden of proof was enacted in order to make it more difficult to successfully raise an insanity defense.
When a verdict of "Not Guilty by Reason of Insanity" (NGRI) is returned, the defendant is required to undergo treatment and evaluation in a state mental hospital. If the evaluation determines that the defendant is "dangerous" he may be committed to the state mental hospital for an indefinite period of time until he is no longer a danger to society. If the defendant is not "dangerous" the court may order mandatory outpatient treatment and release the defendant back into the community.

THE PROPOSAL

The proposal submitted in H.B. 2956 adds a verdict of "guilty by reason of mental illness" to the possible options for the trier of fact in criminal cases. The jury still has the option of finding the defendant guilty, not guilty, or not guilty by reason of insanity. Upon a verdict of guilty by reason of insanity, the defendant would undergo a mandatory evaluation and could be committed to a mental institution if deemed "dangerous." Commitment to a mental hospital or forensic services unit is only authorized if the defendant meets the standards for commitment pursuant to 33-7-303 and 33-6-104.
At least 12 states have adopted such legislation which has traditionally been referred to as a "Guilty, But Mentally Ill" (GBMI) verdict. The statutes of these 12 states are uniform in providing that a verdict of GBMI will result in the same sentence as if the offender had simply been found guilty, but the statutes vary as to the requirements for the provision of mental health care during the term of the sentence.

PRELIMINARY CONSIDERATIONS

Before considering a change in the insanity defense law it would be wise to consider several preliminary matters relating to the application of the current law. How often is an insanity defense raised? When raised, how often is it successful? What is the fate of those who win acquittal by NGRI? How soon does an NGRI defendant return to the community? When they do return to society, do they endanger the public?
Despite public opinion to the contrary, an insanity defense is seldom raised in the criminal justice system and is rarely successful. According to the most comprehensive study of the subject, the insanity defense is raised in slightly less than 1% of all felony indictments in the four states of California, Georgia, Montana, and New York and is successful in only 23% of the cases. This means that an insanity defense is successful in about two-tenths of one percent of all felony indictments.2 The number of successful insanity defense pleas is even lower in Tennessee. Since 1990, about 250 people in Tennessee have been found not guilty by reason of insanity (NGRI). According to the Administrative Office of the Courts "Annual Reports of the Judiciary," 524,366 criminal cases were disposed of in the Criminal Courts of Tennessee from 1990-1997. Comparing the number of insanity acquittals to the number of cases disposed of in criminal courts, it appears that the insanity defense has been successful in Tennessee in less than .05% (five one-hundredths of 1%) of the cases disposed of in the criminal courts. Significantly, this percentage would be even lower if the number of NGRI verdicts were compared to all criminal dispositions, including those at the General Sessions level. The number of NGRI verdicts is so infinitesimally small that any amendment of our current insanity defense law could not seriously impact the criminal justice system.
Under our current law, NGRI defendants who are deemed "dangerous" are committed to mental institutions so long as they remain dangerous. Contrary to popular belief, on average, NGRI defendants spend more time confined in mental hospitals than comparable offenders spend in prison after being found guilty of their crimes.3 An example of this phenomenon is the case of George Waddell. He was found NGRI on vehicular homicide charges in 1989. While defendants found guilty of such a charge were paroled in one to two years, Waddell spent three years in a mental institution before his release into the community. Admittedly, some defendants are released from mental institutions in less time than they would have served if convicted, but by all accounts this is a rarity.
On the issue of danger to the public, it is important to keep in mind that not all NGRI defendants are acquitted of violent crimes. In a multi-state study including California, Georgia, Montana, New Jersey, New York, Washington, and Wisconsin only 50% of those raising an insanity defense were charged with violent felonies and only 15% of these involved homicides.4 Similar studies have also shown that about 50% of all NGRI’s involve non-violent offenses.5 Although a review of the studies produces variations, for the most part defendants who raised the insanity defense had committed violent offenses in about 50% of the cases and committed homicides in only about 15% to 30% of the cases. At least one-third to one-half of those who raised the defense had been involved in non-violent offenses.
In reality, when considering the nation as a whole, less than 1% of felony defendants raise the defense, less than one-quarter of 1% succeed, less than one-eighth of 1% involve violent felonies. In Tennessee, these figures are even lower. In short, under our current insanity defense law an extremely small percentage of people qualify for a verdict of NGRI and many of them are non-violent. Of the violent offenders, many spend more time in mental hospitals than they would have spent in prison, if convicted. Accordingly, it must be recognized and acknowledged that any amendment to the insanity defense law will have no impact on serious crime and the criminal justice system in Tennessee. As the American Psychiatric Association has concluded, amendment of the insanity defense is strictly a philosophical issue, it is empirically unimportant.6

ILLINOIS EXPERIMENT WITH GBMI

Before discussing the pros and cons of the proposal, it would be wise to consider how the GBMI option has affected other states. In 1981, Illinois added GBMI as an option for evaluating the criminal responsibility of defendants. In Chicago, NGRI verdicts increased from 34 to 103 between 1981 and 1984. At the same time, GBMI verdicts increased from 16 in its first year of existence to 87 in 1984. Thus, the GBMI verdict appears to have been rendered in cases in which the defendant would have otherwise been found guilty, not defendants who would have been acquitted by reason of insanity. Furthermore, none of the GBMI defendants were ever transferred from the Department of Corrections to the Department of Mental Health for treatment.7 Contrary to the intent behind enactment of GBMI, its addition did not reduce the number of NGRI verdicts or result in increased mental health treatment for convicted defendants.
PRO

The legal standard of insanity is extremely strict. As a result, many severely mentally ill defendants are found guilty of their crimes and sent into the general population of the state prison system where they will receive little or no mental health care and can fall prey to inmates with greater faculties. Enactment of GBMI could benefit the individual defendant by removing him from the general population of prisoners so long as his illness continued and by providing him with mental health care while institutionalized in a mental hospital. At the same time, the removal of severely mentally ill prisoners from the correctional system will result in a prison population that can be better managed and controlled by correctional employees.

CON

Advocates of the GBMI verdict sometimes base their support on a faulty assumption and the hope that jurors will return a GBMI verdict in cases where the evidence would support a finding of not guilty by reason of insanity.
The faulty assumption is that jurors faced with only the two options of finding the defendant guilty or not guilty by reason of insanity sometimes resolve the dilemma by finding the defendant not guilty by reason of insanity even when the law and the evidence does not support such a finding. With violent felonies, especially homicides, juries traditionally resolve all doubts in favor of finding the defendant sane and rejecting the insanity defense. One has only to look at the cases of State v. Jackson, 890 S.W.2d 436 (Tenn. 1994) and State v. Sparks, 891 S.W.2d 607 (Tenn. 1995) to realize that juries are extremely reluctant to return verdicts of not guilty by reason of insanity. In both Jackson and Sparks, the juries rejected insanity defenses despite the fact that no evidence of sanity was produced by the state. Furthermore, these juries rejected the insanity defense under the pre-1995 law which was less stringent on the defendant than the current law. Any notion that juries will return a verdict of not guilty by reason of insanity in a case that does not clearly support such a verdict is misplaced. If the GBMI proposal is made with the underlying assumption that Tennessee juries return NGRI verdicts when the evidence would not support the verdict, the assumption is misplaced.
Many advocates hope that juries will return GBMI verdicts in cases where the evidence would support a finding of not guilty by reason of insanity. It is hoped that jurors given the option of GBMI will choose it as a compromise verdict, even in cases where the defendant would be entitled to a verdict of NGRI. This appears to be the intent behind Rep. Ford’s proposal. David Cloar was charged in 1990 with the stabbing deaths of his mother and stepfather in Morristown. He was found NGRI and remains in a mental hospital pursuant to current state law. Pleas from the family of his stepfather, concerned that Cloar will eventually be released into the community, have caused Rep. Ford to introduce the present legislation. Significantly, the present legislation would have no effect on cases such as David Cloar’s, unless the jury disregarded its oath and rendered a compromise verdict of GBMI in spite of evidence clearly qualifying the defendant for a verdict of NGRI. Such compromise verdicts strike directly at the heart of mens rea requirement of the criminal law and the right to a fair trial.
Since the proposal will have no effect on those found NGRI, GBMI provides the public no greater safety than current law unless it is being promulgated with the hope that juries will disregard both law and evidence by returning a verdict of GBMI in cases in which the law requires a finding of not guilty by reason of insanity. Under current law, if the jury rejects an insanity defense, the defendant is sent to the penitentiary where he is of no harm to the citizenry. If the jury finds the defendant legally insane, the defendant is judicially hospitalized. The current proposal offers no greater protection to the public. Those that meet the legal test of insanity will be treated no differently. Defendants who do not meet the test, will be either hospitalized or sent to the penitentiary, depending on whether they receive a verdict of guilty or GBMI.
Another danger is that defendants will be found guilty but mentally ill and never receive any mental health care. This is a significant possibility under the proposed statute. The Bill does not seem to make transfer to the department of mental health mandatory and limits such transfers to those defendants who qualify under the strict standards for involuntary commitment. One can also imagine the cyclic sequence of events in which a mentally ill person is stabilized and then sent to prison where because of the conditions his behavior deteriorates requiring him to be transferred back to the mental hospital.


CONCLUSION

The purpose of this article is to inform our membership of the proposal before the legislature and to encourage debate of the merits of the proposal. I have attempted not to take a position for or against the proposal, but to simply set the stage for dialog between our judges, prosecutors, and defense lawyers. Please send your comments directly to the editor for inclusion in our next newsletter and I encourage you to let your voice be heard in Nashville. n

Endnotes

1 The text should be changed to guilty by "mental illness," not "insanity."
2 Henry J. Steadman, Margaret A. McGreevy, Joseph P. Morrisey, Lisa A. Callahan, Pamela Clark Robbins, and Carmen Cirincione, Before and After Hinkley: Evaluating Insanity Defense Reform (New York: Guilford, 1993), pp. 1-3; Table 3-1, p. 37.
3 Id. p. 104.
4 Callahan, L. A., Steadman, H. J., McGreevy, M. A. & Robbins, P. C. (1991). The volume and characteristics of insanity defense pleas: An eight-state study. Bulletin of the American Academy of Psychiatry and Law, 19, 331-338.
5 Pasewark, R. A., Jeffrey, R. W., & Beiber, S. (1987). Differentiating successful and unsuccessful insanity plea defendants in Colorado. Journal of Psychiatry and Law, 15, 55-71.
6 American Psychiatric Association, American Journal of Psychiatry, 140 (1983): 681-688.
7 John Klofus and Ralph Weisheit, "Guilty but Mentally Ill: Reform of the Insanity Defense in Illinois," Justice Quarterly, 4 (March 1987): 39-50.

Since assuming my duties as chairman of the TBA Criminal Justice Section for the year 1998–1999, I have been impressed even more than previously with the unique function that this Section serves for attorneys who practice in the criminal law arena. With a membership drawn from the private bar, prosecutors, public defenders, and judges, the Criminal Justice Section provides a meeting place for those with divergent points of view who share a common interest in preserving the rights guaranteed to all citizens under the United States and Tennessee Constitutions and in improving the administration of justice through the criminal courts of this state. Stated simply, it is a group that concentrates on promoting the things that bind us together professionally, and attempting to reconcile the things that pull us apart.
Before discussing the programs and activities of the Section, it seems appropriate to reflect upon the purposes of the Tennessee Bar Association as an organization. Its purposes, as stated in the bylaws, include five enumerated functions which are "to foster legal education, maintain the honor and dignity of the legal profession, enhance the performance of the legal profession, cultivate professional ethics and fellowship among its members, and promote responsible relationships between the legal profession and the public." In my opinion, each one of these goals supports and reinforces the remaining four. Failure to achieve a single one of them diminishes the ability to achieve the others. For this reason, we must offer our members quality continuing legal education programs. We must insist upon high ethical standards in all our professional dealings and make sure that we conduct ourselves in a manner which is deserving of respect. We must communicate with each other, not just as advocates representing adversarial interests, but as colleagues who care about the well-being of each other and each other’s families. We must be willing to stand up for what is right and not be afraid to say what needs to be said, when the public good demands it. In short, we lawyers will only be respected if we deserve to be respected, and we will not deserve to be respected unless we fulfill our duties to our communities and our profession, not just our duties to ourselves.
In the coming year, I hope to see a further increase in the Section’s membership which presently numbers approximately 154. The Section serves as an advisory body to the Board of Governors on contemporary issues of criminal law. When such issues arise, I urge you to contact myself or any of the members of the Executive Committee to voice your opinions. Also, the Section publishes this newsletter several times per year. You are urged to participate by submitting articles to Mark Ward. The Section has produced some excellent CLE programs in the past several years. Plans are underway for a 9 hour seminar in Nashville on February 25–26, 1999. The seminar topics are likely to include issues involving DUI and forfeiture laws. A second seminar is on the drawing board to be presented during the annual convention in Asheville, North Carolina in June 1999. I hope to see each one of you at one of these events and look forward to working with you during the coming year.

Since publication of our last newsletter the Tennessee Supreme Court has rendered the following opinion relating to criminal law:

DEATH PENALTY: HEINOUS, ATROCIOUS, AND CRUEL, LWOP:
State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998)

Evidence supported HAC aggravator. Victim was placed in closet and endured the mental anguish of hearing her husband murdered in the next room, was raped twice, suffered a bungled attempt at strangulation during which she struggled, and was later successfully strangled to death. Instruction on 1989 HAC amendment was harmless error. Defendant’s objection to life without parole sentencing option resulting in waiver of this issue and there was no statutory authority for such sentence for crimes committed prior to July 1, 1993. Prosecutor erred in closing argument by characterizing the defendant as the "evil one," referencing biblical matters, and arguing general deterrence, but error was harmless. Likewise, error in excluding mitigating evidence was harmless because the information was merely cumulative.

JURY TRIAL, PRESENCE OF ACCUSED:
State v. Muse, 967 S.W.2d 764 (Tenn. 1998)

In order to waive fundamental right to be present during voir dire, defendant must have knowledge of the right and must personally waive the right either in writing or in open court. Error in conducting voir dire without the presence of the defendant may not be deemed harmless.

POST-CONVICTION, LIMITATIONS, ESCAPE:
Shazel v. State, 966 S.W.2d 414 (Tenn. 1998)

Statute of limitations runs during period in which defendant is on escape status.

DEATH PENALTY, RETROACTIVE MIDDLEBROOKS ERROR:
State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998)

Although jury returned guilty verdicts on both common law and felony murder, retroactive Middlebrooks error was created when trial judge set aside common law murder verdict. However, error was harmless. Consideration of non-violent felony to prove aggravating circumstance of prior violent felonies was error, but also harmless. Argument which references biblical passages is error, but harmless.

THEFT, AGGREGATE VALUE OF STOLEN PROPERTY POSSESSED:
State v. Byrd, 968 S.W.2d 290 (Tenn. 1998)

Simultaneous possession or control of stolen property belonging to different owners may be considered one offense and the value of the property aggregated for purposes of establishing the grade of the offense under the theft statute. In addition, aggregation of stolen property taken in separate thefts is permitted when separate acts of theft are: (1) from the same owner; (2) from the same location; and (3) are pursuant to continuing criminal impulse or a single sustained larcenous scheme.

THEFT OF SERVICES, AGGREGATE VALUE OF SERVICES OBTAINED:
State v. Cattone, 968 S.W.2d 277 (Tenn. 1998)

The value of services taken from separate individuals cannot be aggregated under the theft of services statute, T.C.A. § 39-14-104(1). Byrd is distinguished because theft of services may only be accomplished by "obtaining" the service. Unlike the general theft statute, the theft of services statute does not incorporate a provision authorizing conviction for "exercising control over" the services.

SENTENCING: ENHANCEMENT FACTORS, LACK OF HESITATION, POTENTIAL FOR BODILY INJURY, EXCEPTIONAL CRUELTY:
State v. Lavender, 967 S.W.2d 803 (Tenn. 1998)
Enhancement factors (10) lack of hesitation in committing crime when risk to human life was high and (16) great potential for bodily injury are not, as a matter of law, essential elements of the offense of robbery and may be utilized when imposing a sentence for robbery so long as the facts which establish the elements of the offense are not also relied upon to establish the enhancement factors. Fact that robbery was committed in victim’s home at 1:30 A.M. established that risk to human life was high. Circumstances of holding the victims at gunpoint for over an hour and threatening to kill them if they moved established that potential for bodily injury was great.

BRIBERY OF JUDGE:
State v. Benson, 973 S.W.2d 202 (Tenn. 1998)

Defendants have a fundamental constitutional right to an impartial judge. Defendant established by preponderance of the evidence that trial judge solicited a bribe from him. Issue was not waived by failing to raise it pretrial or in motion for new trial. Denial of right to fair trial before an impartial judge not subject to harmless error analysis.

SENTENCING, RESTITUTION TO INSURANCE CARRIER:
State v. Alford, 970 S.W.2d 944 (Tenn. 1998)

Hospitalization carrier is not a "victim" within meaning of restitution statute such that trial judge has no authority to order restitution to victim’s insurance company.

DEATH PENALTY, HAC:
State v. James Blanton, No. 01S01-9605-CC-00093 (Tenn. June 15, 1998)

Intent to torture is not required to establish HAC aggravator. "The torture prong of (i)(5) merely requires a jury finding that the victim remained conscious and sustained severe physical or mental pain and suffering between the infliction of the wounds and the time of death." Multiple gunshot and stab wounds support finding of HAC. Error for trial judge to charge all of the felonies listed in the (i)(7) aggravator when they are not supported by the evidence, but harmless error. Instructing all aggravators was likewise harmless error. Death sentence not disproportionate even though there was no evidence defendant’s role in the killings. Dissent: Sentence disproportionate absent evidence of active role in killings.

STATUTE OF LIMITATIONS, PRETRIAL DETERMINATIONS:
State v. Vickers and Boone, No.02-S-01-9610-CC-00092 (Tenn. June 15, 1998)

Trial courts may conduct pretrial evidentiary hearings on statute of limitations issues only when a determination can be made without involving the general issue of guilt or
innocence.

SEARCH WARRANTS, APPELLATE REVIEW, KNOCK EXCEPTIONS:
State v. Johnny M. Henning, No. 02S01-9707-CC-00065 (Tenn. June 22, 1998)

Credibility of the informant for search warrant affidavit may be established by independent police corroboration. After receiving tip, police observed what appeared to be five transactions and learned that the suspect had two prior arrests for drug violations. Appellate courts may consider entire record (both the suppression hearing and trial) when reviewing the correctness of a trial court’s pretrial ruling on a motion to suppress. Facts established exception to "knock and announce" rule where officer seized defendant as he was entering residence and they fell into the doorway. Fact of defendant’s flight upon approach by officer also established exigent circumstances to justify a warrantless arrest.

JURY INSTRUCTIONS; PAROLE ELIGIBILITY:
State v. King, 973 S.W.2d 586 (Tenn. 1998)

T.C.A. § 40-35-201(b)(2) [now repealed] requiring jury instructions which explain the possibility of early release and parole does not violate the Separation of Powers Clauses of the Tennessee Constitution or the Due Process Clauses of either the United States or Tennessee Constitution.

LWOP; FELONY MURDER AGGRAVATOR:
State v. DeWayne B. Butler et al., No. 02S01-9711-CR-00094 (Tenn. Sept. 14, 1998)

The felony murder aggravator T.C.A. 39-13-204(i)(7) can be used to enhance a sentence to life without the possibility of parole when the defendant is convicted of felony murder. Middlebrooks is not applicable unless the State is seeking the death penalty.

DEATH PENALTY; HAC, SERIOUS PHYSICAL ABUSE:
State v. Gussie Willis Vann, No. 03-S01-9706-CR-00068 (Tenn. Sept. 21, 1998)

Vaginal and anal rape of child victim who died as a result of violent strangulation was sufficient to establish serious physical abuse beyond that necessary to produce death and torture. CCA Appendix: aggravated rape involves violence to the person sufficient to establish (i)(2) aggravating circumstance, even if committed by consent on person less than 13 years of age. Dissent by Birch and Reid: Case should be reversed for failure to give the jury the option of second degree murder.

DEATH PENALTY; AVOIDANCE OF PROSECUTION, ESCAPE STATUS:
State v. Quintero and Hall, No. 01S01-9703-CC-00068 (Tenn. Sept. 21, 1998)

Prevention of arrest or prosecution aggravating circumstance (i)(6) is not limited to instances in which a defendant kills a victim because the victim knows or can identify the defendant. Evidence in this case is sufficient to support a theory that the killing was to avoid arrest because the defendants were escapees, stole the victim’s automobile and drove to Memphis, and cut the telephone lines of the houses they burglarized. Evidence also sufficient to support murder during escape (i)(8) circumstance under Odom definition. Concurrence and Dissent by Holder: Would reverse Odom requirements for escape. Dissent by Birch: Penalty disproportionate as there is no evidence that either defendant actually killed the victims. CCA Appendix: Evidence sufficient to show torture and depravity of mind where victim was shot three times and stabbed 13 times after which the victim could have lived for 15 minutes. Middlebrooks error harmless.

LESSER OFFENSES; HARMLESS ERROR:
State v. Willie Williams, No. 03-S-01-9706-CR-00060 (Tenn. Sept. 21, 1998)

Failure to instruct lesser included offense is subject to harmless error analysis. Failure to instruct voluntary manslaughter is harmless error when jury is instructed on second degree murder, but returns guilty verdict of first degree murder. Dissent by Birch and Ried: Failure to instruct lesser offense violates right to trial by jury and is not subject to harmless error analysis.

VEHICLE TERRY STOP; SEARCH WARRANT AFFIDAVIT REQUIREMENTS:
State v. Dennis Keith and Timothy Collins, No. 02S01-9604-CC-00035 (Sept. 28, 1998)

Officers received information from reliable confidential informant that defendants were storing drugs at residence. Three days later anonymous informant advised officers of same information and that he observed illegal drugs inside residence within four days of call. He also advised that shortly before making call he observed marijuana in a red Honda parked outside the residence. Officers arrived and saw two men leave the residence in the Honda which they stopped. After the stop, one defendant consented to a search of the vehicle which resulted in the seizure of illegal drugs. The officers then obtained a warrant based in part on the fact that drugs were found in the car. Trial judge found no reasonable suspicion. Supreme Court reverses holding, under the totality of the circumstances, the officers had reasonable suspicion. The omission of a jurat from the affidavit does not affect the validity of a warrant. Dissent by Birch: Affidavit which does not show on its face that it was sworn to is no affidavit at all.


INDICTMENTS; CULPABLE MENTAL STATE; EXPERT SERVICES:
George A. Ruff v. State, No. 03-S-01-9711-CC-00135 (Tenn. Sept. 28, 1998)

Based on State v. Hill, 954 S.W.2d 725 (Tenn. 1997), the failure of aggravated kidnapping, aggravated rape, aggravated sexual battery and aiding and abetting aggravated rape indictments to allege a culpable mental state did not render indictments invalid. DHS investigator’s testimony as to the details of her interview with the victim was inadmissible hearsay, but harmless. Defendant failed to make a showing of particularized need to warrant appointment of a psychiatric expert.

DEATH PENALTY; HAC, VICTIM IMPACT EVIDENCE, IMPEACHMENT OF CHARACTER WITNESS:
State v. Clarence C. Nesbit, No. 02-S01-9705-CR-00043 (Tenn. Sept. 28, 1998)

Jurors may use their common knowledge and experience to determine if injuries caused severe physical and mental pain. Evidence was sufficient to support a finding of both serious physical and mental pain and serious physical abuse beyond that necessary to produce death. Over a period of several hours, the defendant inflicted numerous burns on the victim’s body and beat the soles of her feet before shooting her in the head. Victim impact testimony is relevant to show the nature and circumstances of the crime. However, victim impact evidence should be excluded if it threatens to render the trial fundamentally unfair or poses a danger of unfair prejudice. State must provide notice of intent to introduce victim impact evidence, court should conduct jury-out hearing, and no such evidence can be introduced until state has proven at least one aggravating circumstance. Rumor that defendant was a devil worshipper started by victim’s family after defendant charged with homicide was relevant to impeach defendant’s character witness because victim’s family claimed they heard rumor from victim prior to her death. Dissent by Birch: Victim impact evidence in this case went beyond constraints of due process and Rule 403.

DEATH PENALTY; HAC, AVOIDANCE OF ARREST:
State v. Christa Gail Pike, No. 03S01-9712-CR-00147 (Tenn. Oct. 5, 1998)

Evidence that defendant had inflicted on the victim while she was alive and conscious and begging for her life multiple slash and stab wounds to her body too numerous to count, multiple slash wounds to her throat, multiple heavy blows to the head, and had carved a pentagram on her chest established the (i)(5) aggravating circumstance. Evidence that defendant "heard a voice" during the assault telling her that she had to do something to keep the victim from reporting the assault and causing her to go to prison, inter alia, established the (i)(6) aggravating circumstance.

LATE NOTICE OF APPEAL:
Frank Crittenden v. State, No. 01-S-01-9712-CR-00267 (Tenn. Oct. 12, 1998)

Defendant waived appeal, but changed his mind before the time to file a Notice of Appeal had expired and attempted to get his former attorney to file an appeal. The attorney did not appeal and 11 days after the time to file the Notice of Appeal had expired, the defendant filed a pro se "motion to file belated appeal." Under the circumstances, the Supreme Court sua sponte waives the late filed Notice of Appeal, remands to the trial court with instructions to appoint counsel and reenter the sentencing judgment in order to start anew the time within which appellant may perfect a direct appeal.


CONFESSIONS, JUVENILES:
State v. Nathan Allen Callahan, No. 03S01-9711-CC-00136 (Tenn. Oct. 12, 1998)

Neither Tennessee nor U.S. Constitution require police officers to inform a juvenile defendant that he may be prosecuted as an adult before taking his statement. Juvenile waivers shall be analyzed under the totality-of-the-circumstances test, which requires consideration of factors consistent with those stated in Fare v. Michael C., 442 U.S. 707 (1979).

NON-LAWYER JUDGES:
The City of White House v. State et al., No. 01S01-9711-CH-00259 (Oct. 12, 1998)

Article I, Sec. 8 of the Tennessee Constitution prohibits a non-attorney judge from presiding over a criminal proceeding which may result in a citizen’s incarceration.