¶1dissenting.
¶2I respectfully dissent from the majority opinion. I believe that my learned colleagues have missed the mark, and I would hold that the evidence is sufficient to find this appellant guilty of murdering his girlfriend and her seven-year-old son.
¶3The state called several lay witnesses who had known the appellant for many years. Their testimony consistently and substantively indicated sanity. Vergie Ramsey said that the appellant “was putting on to get his check started....” George Ramsey, having known the appellant for four or five years, testified that the only time the appellant had any problems was “when he got drunk.” Walter Pigg, an inmate at the Jackson County Jail along with the appellant, testified that he had known the appellant for about six or seven years. He said the appellant only “acted funny” in jail when the victim’s sister was present. Donna Stewart, having known the appellant for ten years, related that he was mostly quiet except when he was drinking. She witnessed no bizarre behavior. Carol Stacey, appellant’s cousin, knew appellant all of his life. She saw nothing unusual about his behavior.
¶4Appellant made a statement after the killings. T.B.I. Agent Moore stated that he saw nothing unusual about appellant’s demeanor when he was giving the statement. Officer Roger Phillips of the Livingston Police Department testified that he had known appellant for seven or eight years, that when appellant confessed he seemed normal other than being a little bit nervous. Phillips was unaware of any mental problems that the appellant might have had.
¶5I disagree with my colleagues regarding their interpretation of State v. Clayton, 656 S.W.2d 344 (Tenn.1983). I do not believe that our Supreme Court promulgated a blanket rule that changes the law regarding the insanity defense. I cannot agree with the majority’s statement that the law in Tennessee is such that “[t]he testimony of lay witnesses concerning appellant’s outward appearance, simply put, is irrelevant to a correct determination of this issue under the standards set out by our Supreme Court in State v. Clayton....” If in fact the majority is correct, and Claytonchanged the law in Tennessee, then I would respectfully ask for this issue to be reviewed by the Supreme Court.
¶6In the case of Graham v. State, 547 S.W.2d 531 (Tenn.1977), the Supreme Court, after much soul-searching, joined those states which subscribed to the ALI Model Penal Code Test to evaluate criminal responsibility. Under the test, a defendant in a criminal trial in Tennessee is presumed to be sane. This presumption may be rebutted by a pri-ma facia showing of insanity. If evidence challenges the presumption of sanity, then the sanity of the accused becomes an element of the offense. State v. Dodson, 780 S.W.2d 778 (Tenn.Crim.App.1989). The state then must establish beyond a reasonable doubt the defendant’s sanity. The state must establish his capacity to appreciate the wrongfulness of his conduct and his ability to conform his conduct to the requirements of the law. State v. Max, 714 S.W.2d 289 (Tenn.Crim.App.1986).
¶7For decades Tennessee has permitted a lay witness to give an opinion about another *12person’s mental condition. Tennessee has permitted a lay witness to testify regarding the insanity of a defendant if a factual foundation is laid that is sufficient to justify the lay opinion. See Edwards v. State, 540 S.W.2d 641 (Tenn.1976).
¶8In the case sub judice, a psychologist and a psychiatrist testified that the appellant met the Graham, test at the time of the commission of the murders. Numerous lay witnesses who had known Hammock for several years or heard him confess testified for the state to the effect that appellant was sane. Police officers testified about appellant’s condition when he confessed to the crimes. There is no question that the appellant shifted the burden. It appears to me, however, that the state met this burden by the introduction of lay testimony.
¶9In the recent, unreported ease of State v. Sparks, our Presiding Judge, Jerry Scott, wrote as follows:
The state may establish a defendant’s sanity by the use of expert testimony, by lay testimony, or by showing that the defendant’s behavior prior to, during, or after the commission of the crime was consistent with sanity and inconsistent with insanity. Edwards v. State, 540 S.W.2d 641, 646 (Tenn.1976). The jury is not required to accept expert testimony over lay testimony or evidence of the defendant’s behavior at the time of the offense. The jury can grant each bit of evidence such weight as it deserves in light of all the circumstances. State v. Estes, 655 S.W.2d 179, 184 (Tenn.Crim.App.1983).
¶10State v. Sparks, No. 03C01-9205-CR-155, slip op. at 6, 1993 WL 54620 (Tenn.Crim.App., Knoxville, March 3,1993) (Judge Wade and Special Judge Crawford concurring).
¶11I believe the Sparkscase hits the mark; this is a question for the jury. In our state, great weight is given to the result reached by the jury in a criminal trial. A jury verdict approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405 (Tenn.1983). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn.1978).
¶12Where sufficiency of the evidence is challenged, such as in the case at bar, the relevant question for this Court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Duncan, 698 S.W.2d 63 (Tenn.1985); T.R.A.P. 13(e). The weight and credibility of the witness’ testimony are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn.1984); Byrge v. State, 575 S.W.2d 292 (Tenn.Crim.App.1978).
¶13A jury is not required to accept the testimony of a psychologist or a psychiatrist on the issue of sanity to the exclusion of lay testimony. Such a rule would effectively emasculate our jury trial system on sanity issues. Our system would be replaced by a system wherein psychiatrists and psychologists determine the ultimate outcome of the lawsuit. I do not think that Clayton, or the Tennessee Supreme Court meant for that to happen.
¶14In Edwards v. State, our Supreme Court stated:
[I]t is settled beyond question that the weight and value of expert testimony is for the jury and must be received with caution. This applies to the expert opinions of medical men. Where there is any conflict between expert testimony and the testimony as to the facts, the jury is not bound to accept expert testimony in preference to other testimony, and must determine the weight and credibility of each in the light of all the facts shown in [the] case. Expert medical opinion regarding the functioning of the human body must always be more or less speculative.
¶15Edwards v. State, 540 S.W.2d 641, 647 (Tenn.1976) (citations omitted).
¶16If in fact my colleagues are correct as to the law in this ease, prosecutors across the state will have their hands tied in many cases where a defendant’s mental condition is a *13defense. A defendant, particularly one with the funds to hire an expert, may build an insanity defense for several months before the state receives any notice pursuant to Rule 12.2 of the Tennessee Rules of Criminal Procedure. By the time the state is finally aware of the issue, the state may not be able to receive an effective evaluation from its own court-appointed mental experts. Therefore, the state will have no recourse but to call on lay witnesses who may have observed the defendant throughout his or her life or observed the defendant on the day of the commission of the crime. If the majority in the present ease is correct, the state, by law, would be unable to meet its burden with lay testimony. This would be unfair, unjust, and a radical change in our law.
¶17In my view, the issue of insanity is another element of the offense charged if the defendant shifts the burden. The state must then prove beyond a reasonable doubt and to a moral certainty that the appellant was sane. As to every other element of the offense, the state may use lay testimony. I do not see why we have to relegate ourselves in Tennessee to a “battle of the experts,” as the majority would have us do. After all, there was a time when we were prosecuting and defending criminal cases and there were no psychiatrists, psychologists, or mental health experts. The only evidence available was lay testimony.
¶18For these and other reasons of common sense, I respectfully submit that my two colleagues have misinterpreted the law in Tennessee. However, if they have hit the mark and I am wrong, I respectfully ask our high court to reexamine Claytonin the interests of fairness for the public and the accused.
¶19ORDER ON PETITION TO REHEAR
¶20The State has filed a respectful and timely petition for rehearing in this matter. Specifically, the State is aggrieved with the Court’s opinion that lay witness testimony with respect to appellant’s outward appearance, after the fact, was irrelevant to a determination of whether a defendant’s mental illness was such as to render him substantially incapable of conforming his conduct to the requirements of the law he is charged with violating. Further, the State inquires whether the Court’s holding as to the above determination represents a “per se rule.”
¶21As stated in the majority opinion, our Supreme Court’s ruling in State v. Clayton, 656 S.W.2d 344 (Tenn.1983) is directly on point and controlling. Without reiterating the factual parallels in the two cases, both involve undisputed expert testimony that the respective defendants suffered from mental illnesses which rendered them unable to conform their conduct to the requirements of the law.
¶22The Supreme Court in Claytonrelied heavily upon the minority opinion of this Court, penned by then Judge Martha Craig Daughtrey, in determining that under the facts of that case the testimony of the police officers concerning Clayton’s outward appearance, after the fact, was irrelevant to a correct determination as to his sanity. Id., at 351. The pertinent inquiry was whether, at the time of the offense, the defendant was able to conform his conduct to the requirements of the law. Id., at 351. Here, as in Clayton, the testimony of arresting officers the following day concerning Hammock’s outward appearance, under the circumstances, was irrelevant to a determination whether he suffered from a psychosis and could appropriately conform his conduct.
¶23As the State further noted, here the appellant was the beneficiary of unobjected-to and uncontroverted testimony by two court-appointed experts who opined that appellant indeed suffered from such a mental illness, could not conform his conduct, and was legally insane. While we are directed by the State to our unpublished opinion in State v. Travis Wayne Sacchinelli, 1989 WL 76329 released July 14,1989 at Nashville, a cursory review of that authority reveals the burden is upon the State to prove that at the time of the crime the appellant had the capacity to commit the crime under the standards set forth in Graham v. State, 547 S.W.2d 531 (Tenn.1977). In the case sub judice, however, the State totally failed to do so. Furthermore, we distinguish Sacchinelli in that there the issue of insanity was contested by expert and lay witnesses offered by both sides, thereby creating a classic controversy *14of fact. Accordingly, we see no reason for granting the instant petition on the basis of that authority.
¶24In conclusion, once a defendant has overcome the presumption of sanity, as here, the State must meet evidence with evidence, which it has not done.
¶25For the foregoing reasons, and inasmuch as the Court has not overlooked a material fact or failed to consider applicable authority, the petition is denied.
¶26ENTER this 17 day of June, 1993.
¶27/s/ Robert K. Dwyer, Judge ROBERT K. DWYER, JUDGE
¶28/s/ John H. Peay, Judge JOHN H. PEAY, JUDGE
¶29/s/ Paul G. Summers PAUL G. SUMMERS, JUDGE