IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MAY SESSION, 1997 FILED June 09, 1997 Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 02C01-9506-CC-00167 Appellee ) ) HARDEMAN COUNTY vs. ) ) Hon. Jon. Kerry Blackwood, Judge JAMES IRVIN HARVEST, ) ) (Murder Second Degree) Appellant )

SEPARATE CONCURRING OPINION

I concur. However, in fairness to the trial court, I find it appropriate to note that, under the law that existed at the time this offense was tried, the trial judge's denial of funds to obtain an independent evaluation was correct. This case proceeded to trial onJanuary 18, 1995; the supreme court's decision in State v. Barnett was released on November 13, 1995.

____________________________________ DAVID G. HAYES, Judge