(2.1) A plea of not guilty by reason of insanity at the time of the crime shall not be accepted and the defendant adjudicated not guilty by reason of insanity by the court without a jury until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, has held a hearing on the issue of the defendant's mental condition, and the court is satisfied that the defendant was insane at the time of the crime according to the criteria of Code Section 16-3-2 or 16-3-3.
(Orig. Code 1863, § 1314; Code 1868, § 1395; Code 1873, § 1374; Code 1882, § 1374; Penal Code 1895, § 952; Penal Code 1910, § 977; Code 1933, § 27-1503; Ga. L. 1952, p. 205, § 1; Ga. L. 1972, p. 848, § 1; Ga. L. 1977, p. 1293, § 2; Ga. L. 1982, p. 1476, §§ 1, 2; Ga. L. 1984, p. 22, § 17; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 637, §§ 2-4; Ga. L. 1988, p. 1003, § 1; Ga. L. 1989, p. 14, § 17; Ga. L. 1991, p. 780, §§ 1-3; Ga. L. 1992, p. 1328, §§ 2, 3; Ga. L. 2006, p. 765, § 1/SB 398; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2011, p. 337, § 9/HB 324; Ga. L. 2013, p. 141, § 17/HB 79; Ga. L. 2017, p. 471, § 3/HB 343.)
Cross references.- Mental capacity as it relates to culpability for criminal acts, § 16-3-2 et seq.
Mental incompetency to be executed, § 17-10-60 et seq.
Manner of service of petition for release of person detained in facility pursuant to court order under section, §§ 37-3-148,37-4-108,37-7-148.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1985, "Offender Rehabilitation" was changed to "Corrections" throughout this Code section and "and" was inserted after paragraph (f)(2).
Pursuant to Code Section 28-9-5, in 1988, punctuation was revised in the introductory language of subsection (c).
Pursuant to Code Section 28-9-5, in 1991, the parentheses enclosing "or she" following "he" in subparagraph (b)(3)(A) were deleted.
U.S. Code.- Defense of insanity, Federal Rules of Criminal Procedure, Rule 12.2.
Administrative Rules and Regulations.- Disposition of guilty but mentally ill and guilty but mentally retarded offenders, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Services, Mental Health, Developmental Disabilities and Addictive Diseases, Subject 290-4-8.
Law reviews.- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For lecture on law and the unreasonable person, see 36 Emory L.J. 181 (1987). For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For annual survey on the death penalty, see 64 Mercer L. Rev. 109 (2012). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited," see 68 Mercer L. Rev. 35 (2016). For article, "An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases," see 33 Ga. St. U.L. Rev. 553 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note, "Commitment and Release of Persons Found Not Guilty by Reason of Insanity: A Georgia Perspective," see 15 Ga. L. Rev. 1065 (1981). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 121 (1992). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U.L. Rev. 519 (2005). For comment advocating legislative determination of parental liability for costs of institutional custody of child involuntarily committed to a mental health facility in response to criminal behavior in light of Treglown v. Department of Health & Social Servs., 38 Wis.2d 317, 156 N.W.2d 363 (1968), see 19 Mercer L. Rev. 457 (1968). For comment, "Capital Punishment: New Weapons in the Sentencing Process," see 24 Ga. L. Rev. 423 (1990).
JUDICIAL DECISIONSANALYSIS
General Consideration
Application of section to persons charged with crimes committed before its enactment.
- Provisions of this section that, in the event of an acquittal of a person accused of crime by reason of insanity, the jury shall so state in the jury's verdict, and that the accused shall thereafter be confined in the state hospital for the insane, would not be unconstitutional as being retroactive or ex post facto, when applied to the trial of a person charged with a crime committed prior to the date of its passage. Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953).
Timing of the guilt-innocence phase determines whether the burden of proof with regard to mental retardation is beyond a reasonable doubt or by the preponderance of the evidence; when the guilt-innocence phase of a trial occurred before the enactment of O.C.G.A. § 17-7-131 (j) and the sentencing phase occurred afterwards, the burden of proof was by the preponderance of the evidence. Stephens v. State, 270 Ga. 354, 509 S.E.2d 605 (1998).
The 1988 amendment of O.C.G.A. § 17-7-131 reflects a societal consensus against the execution of mentally retarded defendants, and does not violate due process and equal protection. Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989).
When a defendant who was tried before the effective date in O.C.G.A. § 17-7-131 (j) alleges in a petition for habeas corpus that he or she is mentally retarded, the habeas corpus court must first determine whether the petitioner has presented sufficient credible evidence, which must include at least one expert diagnosis of mental retardation, to create a genuine issue regarding the petitioner's retardation. If, after examining the evidence, the habeas corpus court finds that there is a genuine issue, a writ shall be granted for the limited purpose of conducting a trial on the issue of retardation only. Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989).
Prison warden was not properly a party to separate proceedings following the grant of a writ of habeas corpus pursuant to the procedure set out in Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989). Zant v. Foster, 261 Ga. 450, 406 S.E.2d 74 (1991), cert. denied, 503 U.S. 921, 112 S. Ct. 1297, 117 L. Ed. 2d 519 (1992).
Petitioner who was awarded a trial pursuant to Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989) had a right to appointed counsel, bore the burden of proving petitioner's mental retardation by a preponderance of the evidence, and had the right to have the jury selected in the same manner as a death-penalty criminal trial jury, including sequestration; and the court was required to exercise the court's discretion to determine which evidence could be excluded if the evidence's relevance were outweighed by the danger of unfair prejudice. Zant v. Foster, 261 Ga. 450, 406 S.E.2d 74 (1991), cert. denied, 503 U.S. 921, 112 S. Ct. 1297, 117 L. Ed. 2d 519, overruled on other grounds, State v. Patillo, 262 Ga. 259, 417 S.E.2d 139 (1992).
Standards set forth in Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989), are not applicable to mental retardation claims raised in cases tried after the effective date of O.C.G.A. § 17-7-131(c)(3) and (j). Zant v. Pitts, 263 Ga. 529, 436 S.E.2d 4 (1993); Turpin v. Hill, 269 Ga. 302, 498 S.E.2d 52, cert. denied, 525 U.S. 969, 119 S. Ct. 418, 142 L. Ed. 2d 340 (1998).
When petitioner, who was tried for murder prior to July 1, 1988, and was sentenced to death, initiated state habeas corpus proceedings seeking a jury trial on the issue of the petitioner's mental retardation, once the habeas corpus court found a genuine issue regarding the petitioner's mental retardation, the issue had to be thoroughly reviewed and passed upon by a jury under the definition of mental retardation in O.C.G.A. § 17-7-131 and was no longer subject to waiver; thus, the trial court erred in finding that the petitioner waived the right to a jury trial on the issue by later denying mental retardation and asking for the trial proceeding to be dismissed. Rogers v. State, 276 Ga. 67, 575 S.E.2d 879 (2003).
Defendant has burden of proving mental retardation beyond reasonable doubt. Williams v. State, 265 Ga. 351, 455 S.E.2d 836 (1995).
Trial court erred in determining that a petitioner who claimed that the petitioner was guilty but mentally retarded was required to prove the petitioner's claim of retardation by a preponderance of the evidence. Georgia's requirement in O.C.G.A. § 17-7-131 that retardation be proved beyond a reasonable doubt was constitutional. Stripling v. State, 289 Ga. 370, 711 S.E.2d 665 (2011).
Burden of proof determined by states.
- Because Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) left it for the states to develop the standard of proof as to mental retardation, a federal habeas court could not find a Georgia Supreme Court decision - that O.C.G.A. § 17-7-131's reasonable doubt standard did not violate the Eighth Amendment - was an "unreasonable application" of "clearly established" federal law; thus, denial of habeas relief to petitioner death row inmate was proper. Georgia's process as to the mentally retarded and the death penalty, when evaluated as a whole, contained substantial procedural protections as § 17-7-131(c)(3) allowed a defendant to raise the issue of mental retardation in the guilt phase of the defendant's criminal trial and permitted a jury to find a defendant guilty but mentally retarded, which had two significant advantages: the jury did not hear the criminal history that was allowed in the penalty phase, and the jury was not informed that a guilty but mentally retarded verdict would preclude the death penalty. Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011), cert. denied, 566 U.S. 1041, 132 S. Ct. 2727, 183 L. Ed. 2d 80 (2012).
Issue raised by a special plea of insanity at the time of trial is not whether the defendant can distinguish between right and wrong, but is, whether the defendant is capable at the time of the trial of understanding the nature and object of the proceedings going on against the defendant and rightly comprehends the defendant's own condition in reference to such proceedings, and is capable of rendering the defendant's attorneys such assistance as a proper defense to the indictment preferred against the defendant demands. Smalls v. State, 153 Ga. App. 254, 265 S.E.2d 83 (1980).
Death penalty.
- Defendant, who was not found by the jury to be mentally ill, was not entitled to have the death sentence vacated on mental illness grounds as O.C.G.A. § 17-7-131 did not preclude a death sentence on mental illness grounds, and there was no constitutional prohibition under U.S. Const., amend. 8 or Ga. Const. 1983, Art. I, Sec. I, Para. XVII against a death sentence for a competent but mentally ill defendant. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).
Habeas court did not err by failing to address in a defendant's ineffective assistance claim whether potential mental health evidence could have supported a verdict of guilty but mentally ill because O.C.G.A. § 17-7-131 did not preclude a death sentence if the defendant would have obtained a verdict of guilty but mentally ill. Therefore, the habeas court did not err in failing to address the merits of the defendant's claim beyond addressing the role that potential mental health evidence might have played as mitigating evidence in the sentencing phase. Schofield v. Cook, 284 Ga. 240, 663 S.E.2d 221 (2008).
In a 28 U.S.C. § 2254 case in which a death penalty inmate moved for reconsideration of a district court's finding that the inmate was not mentally retarded under Georgia law, the district court remained unconvinced that it should apply the Flynn Effect to reduce the inmate's IQ scores, and even if the full four point reduction requested was applied, the inmate had credible IQ scores of 73 and 75, which were still above the score of 70 that was generally considered to demonstrate significantly subaverage intellectual functioning under Georgia law. Ledford v. Head, F. Supp. 2d (N.D. Ga. Feb. 26, 2014).
In a 28 U.S.C. § 2254 case in which a death penalty inmate moved for reconsideration of a district court's finding that the inmate was not mentally retarded under Georgia law, the case law cited by the inmate did not alter the court's perception of the evidence presented in the case, nor the court's ultimate conclusion that the inmate failed to meet the inmate's burden of proving that the inmate had adaptive deficits in two or more of the relevant areas. Ledford v. Head, F. Supp. 2d (N.D. Ga. Feb. 26, 2014).
Inmate was not entitled to a writ of habeas corpus that arose from the inmate's sentence to death for kidnapping and murder related to the inmate's wife and/or sister-in-law as the inmate failed to show that the inmate was intellectually disabled for purposes of being ineligible for the death penalty as the inmate did not sufficiently prove that the inmate suffered from significant deficiencies in the inmate's adaptive behavior. Tharpe v. Warden, 834 F.3d 1323 (11th Cir. 2016).
Death row inmate was not found intellectually disabled, and thus ineligible for execution, because the inmate did not show any of the three elements required under the Georgia statute to establish intellectual disability; the federal district court applied correct legal standards in making that court's findings of fact and conclusions of law. Conner v. GDCP Warden, 784 F.3d 752 (11th Cir. 2015), cert. denied, 136 S. Ct. 1246, 194 L. Ed. 2d 190 (U.S. 2016).
Acquittal by reason of insanity contains implicit finding that defendant committed the act.
- Implicit within a verdict of acquittal by reason of insanity is a finding that the state has carried the state's burden of proof beyond a reasonable doubt that the defendant did commit the criminal act for which defendant was tried, although there was no criminal culpability. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
"Good cause" defined.
- "Good cause" means a showing that there is reasonable cause to believe that the defendant presently meets the criteria for civil commitment. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
Nature of hearing and burden of proof generally.
- Hearing upon a special plea of insanity is a proceeding of a civil nature, in which the burden rests on the defendant to produce evidence of the defendant's insanity. Smalls v. State, 153 Ga. App. 254, 265 S.E.2d 83 (1980).
Rights of insane acquittee as to civil commitment hearing.
- When there is a hearing on the question of whether a person acquitted of a crime by reason of insanity meets the criteria for civil commitment, equal protection requires that the following rights, which are extended to other people in civil commitment proceedings, be extended to the insanity acquittee: (1) notice of the right to the hearing; (2) notice of the right to counsel and the right to have counsel appointed if the person cannot afford counsel; (3) the right to confront and cross-examine witnesses and to offer evidence; (4) the right to subpoena witnesses and to require testimony be given in person or by deposition from any physician upon whose evaluation the decision may rest; (5) notice of the right to have established some sort of individualized plan specifically tailored to the person's treatment needs; (6) notice of the right to be examined by a physician of the acquittee's own choosing at the acquittee's own expense; and (7) a right to have representatives or guardian ad litem appointed in the acquittee's behalf. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
Commitment procedures need not be identical to those for civil commitment.
- Procedures for commitment after acquittal by reason of lack of mental competence need not be absolutely identical in every respect with the procedures for civil commitment. It suffices that the civil commitment criteria are to be applied in both instances. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979).
For case in which criteria for civil commitment are met, see Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).
It is permissible to require judicial approval before an insanity acquittee can be released, even though other persons cannot be involuntarily committed unless a team of medical experts so recommends. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
Presumption of continuing insanity at time of release hearing.
- If defendant in a release hearing has been examined three separate times to determine mental competency in relation to a criminal trial, and there has been a judicial determination that the defendant was not mentally responsible for the defendant's crimes and apparently not competent to stand trial, there exists a continuing presumption of insanity at the time of the release hearing. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).
If a defendant who has been acquitted of a crime by reason of insanity is ordered committed to a mental hospital and files an application for release, there is a continuing presumption of insanity at the time of the release hearing. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
There is a presumption of continued existence of a mental state once proved to exist. Thus, when a defendant who has been acquitted of a crime by reason of insanity is ordered committed to a mental hospital and files application for release, there is a continuing presumption of insanity at the time of the release hearing. Williams v. State, 185 Ga. App. 559, 365 S.E.2d 141 (1988).
Superior court, in deciding applications for release of persons committed upon a plea of insanity, may rely on the presumption of continued insanity (see O.C.G.A. § 24-14-21) and is not bound by the opinions of either lay or expert witnesses. The court also may take judicial notice of the evidence at trial under O.C.G.A. § 17-7-131(e). Butler v. State, 258 Ga. 344, 369 S.E.2d 252 (1988).
Presumption of continued need for inpatient involuntary treatment overcome.
- Trial court erred in denying a recommendation filed by the Department of Behavioral Health with Developmental Disabilities that a patient be moved to a group home for outpatient involuntary treatment because the preponderance of the evidence supported a finding that the patient overcame the presumption under former O.C.G.A. § 24-4-21 (see O.C.G.A. § 24-14-21) of a continued need for inpatient involuntary treatment, and there was no evidence to support the trial court's finding that under O.C.G.A. § 37-3-1(9.1), the patient posed a substantial risk of imminent harm to the patient or others or was so unable to care for the patient's own physical health and safety as to create an imminently life-endangering crisis; the group home would have only two other suitable patient occupants, both of whom would be under the supervision of live-in supervisors and would have little opportunity to pressure the patient into misconduct, the patient would not be permitted to leave the group home unsupervised, the manager of the group home testified that as soon as patients were admitted into the group home and evaluated, an individualized service plan was created, and there was no statutory requirement that a plan exist prior to release. Nelor v. State, 309 Ga. App. 165, 709 S.E.2d 904 (2011).
Motion for continuance to procure further psychiatric examination.
- When a motion for a continuance to procure further psychiatric examination is based on evidence that reasonably indicates mental instability on the part of the defendant at the time of the offense or at the time of trial and when the motion is not made for the mere purpose of delay and avoidance of prosecution, the interests of justice might be better served if the trial court's discretion were exercised in favor of the defendant, even when no special plea of insanity has been filed by counsel. Morgan v. State, 135 Ga. App. 139, 217 S.E.2d 175, rev'd on other grounds, 235 Ga. 632, 221 S.E.2d 47, overruled on other grounds, Dent v. State, 136 Ga. App. 366, 221 S.E.2d 228, overruled on other grounds, Davis v. State, 136 Ga. App. 749, 222 S.E.2d 188 (1975).
Plea of guilty but mentally retarded.
- Trial court could accept a plea of guilty but mentally retarded if the state agreed and the trial court found a factual basis for the plea. If the state objected, the trial court was required to reject the plea and hold a trial. Stripling v. State, 289 Ga. 370, 711 S.E.2d 665 (2011).
Defendant's motion to withdraw a guilty plea was not a proper vehicle to pursue the defendant's claim of dissatisfaction with treatment the defendant received for the defendant's mental illness. Boyette v. State, 217 Ga. App. 593, 458 S.E.2d 397 (1995).
Appellate court was not persuaded that the defendant was entitled to withdraw a plea of guilty but mentally ill due to the trial court's failure to follow the procedures in O.C.G.A. § 17-7-131(b)(2) because the defendant failed to prove that withdrawal of the plea was necessary to correct a manifest injustice, having presented no evidence the defendant was harmed by entry of the plea. Poole v. State, 326 Ga. App. 243, 756 S.E.2d 322 (2014).
Burden and standard of proof when insanity made part of general plea of not guilty.
- If the defense of insanity is made under the general plea of not guilty, the burden rests upon the defendant, under the presumption of sanity, to show by a preponderance of the evidence, but not beyond a reasonable doubt, that the defendant was not mentally responsible at the time of the alleged crime. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962).
Burden and standard of proof when general plea of insanity filed.
- If a defendant in a criminal case files a general plea of insanity, that is, the defendant argues that the defendant is not guilty of the crime by reason of being insane at the time of the crime's commission, the burden is on the defendant to establish by a preponderance of the evidence that the defendant was insane. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
Prosecutor is entitled to argue vigorously that defendant is guilty, although the disputed issue at trial is not defendant's guilt but defendant's mental illness. Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 816, 83 L. Ed. 2d 809 (1985).
Insanity ordinarily a jury question.
- Ordinarily, the question of insanity at the time of commission of the act is one for the determination of the jury. Brand v. State, 123 Ga. App. 273, 180 S.E.2d 579 (1971).
Discussion of law in closing argument.
- Trial court erred by prohibiting the defendant during closing arguments from discussing the law regarding the different ramifications and dispositions associated with verdicts of "guilty but mentally ill," and not guilty by reason of insanity; however, this error did not contribute to the "guilty but mentally ill" verdict in this case, and thus was harmless. Minter v. State, 266 Ga. 73, 463 S.E.2d 119 (1995).
Effect of "guilty but mentally ill" verdict.
- As for the issue of "mental illness," it is apparent from O.C.G.A. § 17-7-131(g) that such a verdict has the same force and effect as any other guilty verdict, with an additional provision that the Department of Corrections or other incarcerating authority provide mental health treatment for a person found "guilty but mentally ill." Logan v. State, 256 Ga. 664, 352 S.E.2d 567 (1987).
Informing a jury that the jury could return a verdict of "guilty but mentally ill" does not deprive a defendant of the defense of insanity on the basis that the alternative affords the jury a "palatable verdict" of simultaneously holding a defendant responsible for the defendant's actions by finding the defendant guilty, yet mitigating that finding by also finding the defendant mentally ill, when the jury is clearly informed of the jury's task of determining the validity of the defendant's defense of insanity, and of the requirement to find the defendant not guilty by reason of insanity should the jury accept that defense. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988).
"Guilty but mentally ill" verdict does not conflict with general verdict requirement.
- Verdict of "guilty but mentally ill" under O.C.G.A. § 17-7-131 does not conflict with the requirement of a general verdict as provided by O.C.G.A. § 17-9-2. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988).
Applying "guilty but mentally ill" provision retrospectively.
- Since the bank robberies were committed before July 1, 1982, and a verdict of guilty was authorized by the evidence, the application of the "guilty but mentally ill" provision was not an unconstitutional application of an ex post facto law. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983).
Since the defendant did not seek a jury determination of the defendant's alleged mental retardation, as defined by O.C.G.A. § 17-7-131(a)(3), at the defendant's criminal trial for murder, that issue was procedurally defaulted pursuant to O.C.G.A. § 9-14-48(d); however, the court reviewed the issue under the miscarriage of justice standard and determined that Ring v. Arizona, 536 U.S. 584 (2002) did not have a retroactive effect in the defendant's collateral review proceeding instituted after the appeals from the original trial were completed. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003).
Procedural requirements not retroactive.
- Since the defendant pled "guilty but mentally ill" to the offense of malice murder in 1983, the plea was tendered and accepted under the original provisions of O.C.G.A. § 17-7-131, which contained no specific procedural requirements for the entry of such a plea, and the trial court was not bound by the provisions of (b)(2) as those provisions were not enacted until 1985. Logan v. State, 256 Ga. 664, 352 S.E.2d 567 (1987).
Evaluation report.
- While the failure to file the statutorily required written evaluation report of the appellant's present mental condition does not rise to the level of procedural due process, nevertheless the statute does expressly require that the report be made and tendered to the trial court and counsel, and the proper remedy is to direct compliance with the statute. Williams v. State, 185 Ga. App. 559, 365 S.E.2d 141 (1988).
Effect of presenting "guilty but mentally ill" defense on insanity defense.
- When the defendant's counsel acquiesced in presenting the "guilty but mentally ill" verdict option to the jury, the defendant was estopped from contending on appeal that the option infringed on the defendant's defense of insanity. Milam v. State, 255 Ga. 560, 341 S.E.2d 216 (1986).
Verdict of not guilty by reason of insanity reflected two crucial factual determinations. First, such verdict indicated a determination beyond a reasonable doubt by the finder of fact that the defendant committed the crime in question. Secondly, this verdict indicated a finding that it has been demonstrated by a preponderance of the evidence that the defendant, at the time the criminal act was committed, met the criteria for civil commitment. Under former O.C.G.A. § 24-4-21 (see O.C.G.A. § 24-14-21), this mental state was presumed to continue so that the burden of proof in a release proceeding under O.C.G.A. § 17-7-131 rests on the insanity acquittee. Whitfield v. State, 158 Ga. App. 660, 281 S.E.2d 643 (1981).
"Guilty but mentally ill" plea knowingly entered.
- In a malice murder case, a review of the record of the "guilty but mentally ill" plea, as well as of the collateral proceedings, revealed that the plea was knowingly and voluntarily entered by the defendant with a full understanding of the defendant's waiver of rights and the consequences of the entry of the plea. Logan v. State, 256 Ga. 664, 352 S.E.2d 567 (1987).
Establishing career offender with plea of "guilty but mentally ill."
- Felony conviction for a crime of violence based on a plea of "guilty but mentally ill" under O.C.G.A. § 17-7-131 qualified as a predicate offense to establish career offender status under the federal sentencing guidelines. United States v. Bankston, 121 F.3d 1411 (11th Cir. 1997), cert. denied, 522 U.S. 1067, 118 S. Ct. 735, 139 L. Ed. 2d 672 (1998).
Plea of not guilty by reason of insanity is a plea of confession and avoidance. It admits the facts pled in the indictment, but avoids conviction because of the condition of insanity of the defendant at the time of the offense. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).
Plea of not guilty by reason of insanity is a plea of confession and avoidance, which admits the facts pled in the indictment, but avoids conviction because of the condition of insanity of the defendant at the time of the offense. Kelley v. State, 235 Ga. App. 177, 509 S.E.2d 110 (1998).
Jurisdiction afforded committing courts pursuant to O.C.G.A. § 17-7-131 is not limited to the rendition of the initial commitment order and final release decision, but also encompasses the authority to render all other decisions necessary for the treatment of the insanity acquittee as well as those decisions necessary to ensure both the acquittee's safety and the safety of the community. O'Neal v. State, 185 Ga. App. 838, 365 S.E.2d 894 (1988).
Pursuit of treatment outside treating facility.
- Committing court has the authority to allow an insanity acquittee to pursue treatment, educational, or other goals outside the confines of the treating facility. O'Neal v. State, 185 Ga. App. 838, 365 S.E.2d 894 (1988).
Availability of state funding need not be mentioned.
- Provisions of O.C.G.A. § 17-7-131(g)(1) merely specify the respective obligations of the trial court and the penal facility following a conviction based on a verdict of guilty but mentally ill, and the trial court is not obligated to instruct the jury that any required treatment would be dependent upon the availability of state funding. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016).
Court retains jurisdiction after plea of insanity is accepted.
- If the defendant enters a plea of not guilty by reason of insanity, which is accepted, and the court commits the defendant to a hospital for treatment, the committing court retains jurisdiction of the acquitted-committed defendant. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).
Rejection of expert testimony as to sanity.
- Jury is free to reject expert testimony as to sanity and may find an accused sane even without positive testimony as to sanity. Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).
Trial judge, as the finder of fact, is not bound by the opinions of either lay or expert witnesses as to sanity and may rely upon the basic presumptions permitted by law. Haugebrooks v. State, 196 Ga. App. 5, 395 S.E.2d 348 (1990).
Jurors are not bound by the opinions of expert witnesses regarding a defendant's sanity; instead, jurors may rely on the presumption of sanity in O.C.G.A. § 16-2-3 unless the proof of insanity is overwhelming. Vanderpool v. State, 244 Ga. App. 804, 536 S.E.2d 821 (2000), cert denied, 532 U.S. 996, 121 S. Ct. 1658, 149 L. Ed. 2d 640 (2001).
Criminal accountability not relieved by proof of multiple personalities.
- In every circumstance, including the existence of multiple personalities, the law is justified in governing accountability when at the time of the criminal act the person had mental capacity to distinguish between right and wrong in relation to such act and was not acting because of a delusional compulsion as to such act which overmastered the person's will to resist committing the crime, which delusion would, if true, have justified the act. If these elements are found to be present in a case, the law will not inquire whether the individual possesses other personalities, fugues, or even moods in which the person would not have performed the act or perhaps did not even know the act was being performed. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983).
Verdict of guilty but mentally ill proper when multiple personalities showing.
- Since the trial judge accepted that the defendant suffered from a multiple personality disorder, but ruled that the personality who robbed the banks did so with rational, purposeful criminal intent and with knowledge that the robbery was wrong, there was no error in the judge's finding that the defendant was guilty but mentally ill. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983).
Investigation not required prior to sentencing mentally retarded defendant.
- Trial court did not err in sentencing the defendant, after a finding of guilty but mentally retarded, as contrary to the defendant's assertion, neither the current nor former version of O.C.G.A. § 17-7-131 required a trial court to have an investigation conducted prior to sentencing a mentally retarded defendant. Moreover, contrary to the defendant's argument, the statutory and regulatory framework demonstrated that the required evaluation was an administrative rather than a judicial function that occurred post- sentencing. Chauncey v. State, 283 Ga. App. 217, 641 S.E.2d 229 (2007).
Verdicts not inconsistent.
- Verdicts of not guilty by reason of insanity pursuant to O.C.G.A. § 17-7-131(a)(1) of malice murder and guilty but mentally ill of other related offenses, including felony murder, were not mutually exclusive, and any claim that the verdicts were inconsistent was not relevant because the inconsistent verdict rule had been previously abolished. Shepherd v. State, 280 Ga. 245, 626 S.E.2d 96 (2006), overruled on other grounds by McElrath v. State, 2020 Ga. LEXIS 127 (Ga. 2020).
Separate trial not authorized.
- Defendant charged with capital murder was properly denied a separate trial on the question of defendant's mental retardation because the jury in a capital trial determines "at the time of the trial on guilt or innocence" whether the defendant is mentally retarded. Livingston v. State, 264 Ga. 402, 444 S.E.2d 748 (1994).
Defendant in a capital trial is not entitled to a separate trial on the issue of mental retardation; O.C.G.A. § 17-7- 131(c)(3) requires the jury to determine mental retardation during the guilt/innocence phase. Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998).
Sentencing instructions.
- Since the defendant acknowledged the defendant could not prove the defendant's tendered insanity defense, and the defendant requested and received an instruction on the guilty but mentally ill verdict, the defendant was not entitled to an instruction on the sentencing options of that verdict, as that would have no bearing on the defendant's guilt or innocence. Cranford v. State, 186 Ga. App. 862, 369 S.E.2d 50 (1988).
Maximum punishment for mentally retarded.
- Prospective juror's opinion of whether a mentally retarded defendant should receive a harsher punishment than a person of normal intelligence is irrelevant since a defendant found by the jury to be mentally retarded cannot be executed and automatically receives a life sentence. Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997), cert. denied, 523 U.S. 1127, 118 S. Ct. 1815, 140 L. Ed. 2d 953 (1998).
Amendment of guilty verdict to guilty but mentally ill not permitted.
- Because the jury was instructed on possible verdicts of guilty and guilty but mentally ill and returned a verdict of guilty, amendment of the verdict from guilty to guilty but mentally ill would constitute an impermissible substantive change. Hollis v. State, 215 Ga. App. 35, 450 S.E.2d 247 (1994).
Verdict of guilty but mentally ill supported by evidence.
- When a social worker who examined the defendant testified that, although the defendant suffered from mental illness, the defendant knew the difference between right and wrong at the time of the crime, any rational trier of fact could have found from the evidence presented at trial that the defendant was guilty of the crime charged beyond a reasonable doubt, albeit mentally ill at the time of the crime. Jackson v. State, 166 Ga. App. 477, 304 S.E.2d 560 (1983). See also Awtrey v. State, 175 Ga. App. 148, 332 S.E.2d 896 (1985).
Defendant was properly found guilty, but mentally ill, pursuant to O.C.G.A. § 17-7-131(c)(2), since expert testimony allowed the jury to conclude that the defendant knew the difference between right and wrong, planned the killings, intended for the defendant's victims to die, knew that the defendant was ending their lives, appreciated the finality of the defendant's own actions, knew the defendant had done a terrible thing, was remorseful, and knew some people would view the defendant's actions as illegal. Boswell v. State, 275 Ga. 689, 572 S.E.2d 565 (2002).
Verdict of guilty but mentally ill was not demanded since there was evidence that the defendant's mental illness was characterized by periods of normalcy, and that the defendant's criminal acts on the day in question were not motivated by the delusions from which the defendant suffered. Lebbage v. State, 244 Ga. App. 596, 536 S.E.2d 282 (2000).
"Guilty but mentally ill" plea properly accepted.
- Since psychological evaluations were ordered by the court and defense counsel and the findings from both, which were consistent, were read into the record for the court's consideration at the plea hearing, the requirements of O.C.G.A. § 17-7-131 (b)(2) were satisfied. Cullers v. State, 247 Ga. App. 155, 543 S.E.2d 763 (2000).
Evidence did not support finding of insanity.
- See Stephens v. State, 258 Ga. 320, 368 S.E.2d 754 (1988); Tarver v. State, 186 Ga. App. 905, 368 S.E.2d 828 (1988).
"Insanity" and "mentally ill" verdicts not inseparable.
- Verdicts of "not guilty by reason of insanity at the time of the crime" and "guilty but mentally ill at the time of the crime" are not inseparable; when the jury is instructed as to "guilty but mentally ill," the jury need not also be instructed as to "not guilty by reason of insanity" when there is no evidence to support a charge on insanity. State v. Ball, 251 Ga. 840, 310 S.E.2d 516 (1984).
Repeated charges and examples.
- When proper charge concerning delusional compulsion had been given twice, there was no harmful error in judge providing jury with example of delusional compulsion. Camp v. State, 250 Ga. 228, 297 S.E.2d 26 (1982).
When insanity presumption ends.
- Any presumption of insanity raised by a finding that a person is a "mentally ill person requiring involuntary treatment" pursuant to O.C.G.A. § 37-3-1(12) ends when the person's involuntary commitment or hospitalization ends. Nelson v. State, 254 Ga. 611, 331 S.E.2d 554 (1985).
Dismissal of defendant's petition to correct a void judgment was proper when the procedural requirements of O.C.G.A. § 17-7-131(b)(2) were fulfilled when the defendant's plea of guilty but mentally ill was taken and a factual basis for the plea was established. Barber v. State, 240 Ga. App. 156, 522 S.E.2d 528 (1999).
Court, not institution, controls release.
- Ultimate power to order the release from a mental institution of an insanity acquittee is one which rests, not in the institution, but in the trial court. Loftin v. State, 180 Ga. App. 613, 349 S.E.2d 777 (1986).
Exhaustion of remedies not required before seeking habeas relief.
- Because an involuntary detainee is specifically granted the right to seek habeas relief "at any time" by O.C.G.A. § 37-3-148, exhaustion of remedies is not required before a person involuntarily committed to a mental health facility following an acquittal by reason of insanity may seek habeas relief. Hogan v. Nagel, 273 Ga. 577, 543 S.E.2d 705 (2001); Hogan v. Nagel, 276 Ga. 197, 576 S.E.2d 873 (2003).
Release from not guilty by reason of insanity verdict.
- Trial court erred by not releasing the defendant from the not guilty by reason of insanity verdict because the defendant rebutted the presumption of insanity and the need for continued involuntary outpatient commitment; the treating psychiatrist testified that the defendant had good insight into the defendant's condition, was coping well, was compliant, independently cared for oneself, and could be responsible for complying with treatment without the aid of an involuntary order. Coogler v. State, 324 Ga. App. 796, 751 S.E.2d 584 (2013).
Court authorized to deny mental patient's application for release.
- Although the hospital physician and nurses testified that in their opinion a mental patient, involuntarily committed after being found not guilty of murdering the patient's brother by reason of insanity, did not presently meet the criteria for civil commitment and should have been released, based upon the evidence presented, including relapses suffered in the past after the patient ceased to take the patient's medication, during one of which the patient killed the patient's brother, the court was authorized to deny the application for release. Cox v. State, 171 Ga. App. 550, 320 S.E.2d 611 (1984).
It was within the court's discretion to reject conclusions reached by a patient's professional witnesses and the patient's mere promise that the patient would continue to take the patient's medication upon conditional release. Butler v. State, 225 Ga. App. 288, 483 S.E.2d 385 (1997).
Denial of release from involuntary confinement held proper.
- Trial judge did not err in denying the release of a mental patient found not guilty of murder by reason of insanity from involuntary confinement despite the mental health professionals' support for the patient's release since the professional's recommendations were based on the professional's conclusions that the patient was no longer a danger to self or others because the patient's mental condition was controlled by medication, which the patient would continue to take if the patient were released; the patient was under medication at the time the patient committed the murder, but quit taking the medication because the patient decided that the patient no longer needed the medication; the patient stated the patient believed the medication was beneficial, but the patient did not believe the patient needed to take the medication to function in society; the patient also expressed other irrational beliefs about another's ability to throw "hates" at the patient; having acted upon numerous earlier requests concerning the patient's custody, the trial judge was very familiar with the defendant's mental condition and case history; and the judge's order denying release was well documented. Crawford v. State, 202 Ga. App. 653, 415 S.E.2d 300 (1992).
Trial court did not err in denying mental health patient's motion for release when the record evinced that the patient remained highly delusional and capable of acting on those delusions to the injury of oneself or others. Gross v. State, 210 Ga. App. 125, 435 S.E.2d 496 (1993).
Rational trier of fact could have found that the appellant failed to prove by a preponderance of the evidence that the appellant was no longer insane and should be released from civil commitment when experts testified that the appellant became violently "psychotic" when the appellant engaged in substance abuse and that, although the appellant might not exhibit violently "psychotic" behavior so long as the appellant underwent the regimen of "forced abstinence" in a hospital setting, there was nothing to show that, once released from that setting and regimen, the appellant would not again engage in substance abuse and commit yet another violent "psychotic" act. Nagel v. State, 264 Ga. 150, 442 S.E.2d 446 (1994).
Trial court did not err in denying the defendant's petition for release from inpatient involuntary treatment under O.C.G.A. § 17-7-131(f) because the defendant continued to meet the statutory inpatient involuntary treatment criteria under O.C.G.A. § 37-3-1(9.1), and the defendant failed to rebut the presumption of continuing insanity and that inpatient involuntary treatment was still required; the defendant's experts testified that the defendant had physical altercations with patients and had relapsed and experienced an auditory hallucination after the trial court denied the defendant's prior request for release, which led to an increase in medications. Newman v. State, 314 Ga. App. 99, 722 S.E.2d 911 (2012).
Trial court was authorized to find that the defendant failed to prove that the defendant should be conditionally released to outpatient treatment in a group home based on the defendant's long history of substance abuse and mental illness, lack of personal support, high level of intelligence and education, the defendant's family's adamant opposition, and the expert's opinion that the defendant may not take the illness seriously and may not appreciate the gravity of the offenses. Gibson v. State, 335 Ga. App. 569, 782 S.E.2d 472 (2016).
Detainee should have treatment plan for release.
- Trial court did not exceed the court's authority by granting a writ of habeas corpus, pursuant to O.C.G.A. § 9-14-19, to an involuntary detainee who had been committed to a state hospital upon a finding of not guilty by reason of insanity in the deaths of the detainee's grandparents and ordering that the state hospital officials prepare a plan for supervision and outpatient services upon the detainee's release; the detainee was entitled to seek relief by that route, pursuant to O.C.G.A. § 37-3-148(a), or by seeking a release petition pursuant to O.C.G.A. § 17-7-131(f). Hogan v. Nagel, 276 Ga. 197, 576 S.E.2d 873 (2003).
Extension of involuntary outpatient treatment.
- When an insanity acquittee has successfully completed a conditional release program order under O.C.G.A. § 17-7-131(e), the trial court is required to discharge the acquittee from the order requiring involuntary inpatient treatment, but is authorized to require that the acquittee participate in involuntary outpatient treatment. Sikes v. State, 268 Ga. 19, 485 S.E.2d 206 (1997).
"Traumatic brain injury" exclusion in O.C.G.A. § 37-3-1 did not preclude the defendant's involuntary treatment since the defendant was adjudicated mentally ill as defined in O.C.G.A. § 17-7-131. Sikes v. State, 221 Ga. App. 595, 472 S.E.2d 101 (1996).
Defendant failed to prove sanity.
- Defendant failed to prove that the defendant was not insane when the evidence indicated, inter alia, that the defendant had multiple fixed delusions, including believing to be a secret service agent and owning the hospital where the defendant was committed. Gross v. State, 262 Ga. App. 328, 585 S.E.2d 671 (2003).
Defendant failed to carry the defendant's burden of showing by a preponderance of the evidence that the defendant was sane after the defendant was found not guilty by reason of insanity on two stalking charges and was ordered into a civil commitment to a mental health facility; the verdict of not guilty by reason of insanity established both that the defendant committed the criminal offense and that the defendant did so becaue of a mental illness, and once the defendant was ruled insane, a presumption existed under former O.C.G.A. § 24-4-21 (see O.C.G.A. § 24-14-21) that the insanity existed thereafter, and the defendant put on very little evidence to the contrary. Bonney v. State, 295 Ga. App. 706, 673 S.E.2d 102 (2009).
Court did not need to inquire sua sponte into defendant's competency.
- Despite the defendant's contentions that the trial court erred in not ensuring the competency required to control the defense, nothing before the appellate court indicated that the defendant was incompetent to stand trial, nor was there any evidence that should have indicated to the trial court that a sua sponte inquiry into competency was required. Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007).
Trial court did not err by failing to sua sponte order that the defendant submit to a mental health evaluation to determine the defendant's sanity, or by failing to instruct the jury that the jury was entitled to reach a verdict of guilty but mentally ill as the defendant made no request, motion, or other affirmative attempt to demonstrate to the trial court that the defendant had an insanity defense. Perkins v. State, 328 Ga. App. 508, 759 S.E.2d 626 (2014).
No error in finding lack of mental retardation.
- Habeas court did not err in finding that an inmate failed to prove mental retardation, in light of the conflicting evidence, including expert and lay testimony and non-testimonial evidence. Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56, cert. denied, 552 U.S. 1070, 128 S. Ct. 728, 169 L. Ed. 2d 569 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Determinations of mental competency.
- In light of Georgia's statutory bar under O.C.G.A. § 17-7-131(j) against executing mentally retarded individuals and the U.S. Supreme Court's holding that executing mentally retarded individuals was unconstitutional, a federal habeas court concluded that an evidentiary hearing under 28 U.S.C. § 2254(e) was necessary to determine whether it was unreasonable for a prisoner's attorneys to fail to investigate or raise the issue of mental retardation at the prisoner's capital murder trial and whether the prisoner was, in fact, mentally retarded because: (1) in determining that counsels' decision not to raise or investigate the issue of mental retardation was not unreasonable, the state habeas court relied entirely on the opinions and testimony of two experts, neither of whom specifically addressed the statutory factors relevant to mental retardation under O.C.G.A. § 17-7-131(a)(3); and (2) the basis for the state habeas court's determination that the prisoner was not mentally retarded was unclear. Ledford v. Head, F. Supp. 2d (N.D. Ga. Oct. 13, 2006).
Denial of the death-row inmate's petition for writ of habeas corpus was affirmed because the district court's finding that the inmate was not intellectually disabled was supported by the record since the inmate failed to demonstrate significant or substantial deficits in adaptive behavior in two adaptive skill areas as the inmate's work problems resulted from the inmate's substance abuse, rather than a limitation in an "adaptive skill area". Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432, 197 L. Ed. 2d 650 (U.S. 2017).
Procedure for opening statements and closing arguments.
- Trial of a habeas corpus petitioner's claim of mental retardation should be regarded as a completion of the guilt/innocence phase of the petitioner's original trial and, therefore, the state was entitled under Ga. Unif. Super. Ct. R. 10.2 to make an opening statement before the petitioner. Under O.C.G.A. § 17-8-71, the state was entitled to make an initial closing argument, the petitioner could then make the petitioner's closing argument, and the state was entitled to make a final closing argument. Stripling v. State, 289 Ga. 370, 711 S.E.2d 665 (2011).
Ineffective assistance of counsel for failing to plead guilty but mentally retarded not found.
- With regard to a defendant's convictions for kidnapping, aggravated sodomy, and aggravated sexual battery, the defendant was not rendered ineffective assistance of counsel as a result of trial counsel's decision not to file a plea of guilty but mentally retarded and, instead, attack the credibility of the victim as trial counsel's decision as to which theory of defense to pursue was a matter of trial strategy and tactics that was not unreasonable and thus did not constitute ineffective assistance. Hampton v. State, 294 Ga. App. 857, 670 S.E.2d 502 (2008).
Counsel's failure to raise issue deficient but not prejudicial.
- Defendant's trial counsel performed deficiently in not seeking expert assistance in evaluating the defendant's mental condition at the time of the shooting and at the time of trial because the defendant was hospitalized in 1996 after stabbing the same man that the defendant murdered; and, in 1996, the defendant reported hearing a voice telling the defendant to kill for which the defendant received antipsychotic medication; however, counsel's deficient performance was not prejudicial as the defendant did not show that the jury would have returned a verdict of not guilty by reason of insanity because the defendant did not receive any diagnosis of or treatment for mental illness for more than a decade before the current crimes. Scott v. State, 301 Ga. 573, 802 S.E.2d 211 (2017).
Cited in Davis v. State, 216 Ga. 110, 114 S.E.2d 877 (1960); Chandler v. State, 219 Ga. 105, 131 S.E.2d 762 (1963); Massey v. State, 222 Ga. 143, 149 S.E.2d 118 (1966); Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967); Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972); Pierce v. State, 231 Ga. 731, 204 S.E.2d 159 (1974); Saylor v. Terminal Transp. Co., 132 Ga. App. 760, 209 S.E.2d 133 (1974); Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185 (1975); Nunnally v. State, 235 Ga. 693, 221 S.E.2d 547 (1975); Wessner v. State, 236 Ga. 162, 223 S.E.2d 141 (1976); Graham v. State, 236 Ga. 378, 223 S.E.2d 803 (1976); Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976); Myers v. State, 143 Ga. App. 195, 237 S.E.2d 662 (1977); White v. State, 143 Ga. App. 315, 238 S.E.2d 247 (1977); Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (1978); Dubose v. State, 148 Ga. App. 9, 251 S.E.2d 15 (1978); Pennewell v. State, 148 Ga. App. 611, 251 S.E.2d 832 (1979); Bell v. State, 244 Ga. 211, 259 S.E.2d 465 (1979); Cantwell v. State, 153 Ga. App. 717, 266 S.E.2d 354 (1980); Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980); Mullins v. Belcher, 159 Ga. App. 520, 284 S.E.2d 35 (1981); Clayton v. State, 160 Ga. App. 908, 288 S.E.2d 621 (1982); Gates v. State, 167 Ga. App. 353, 306 S.E.2d 411 (1983); Murray v. State, 253 Ga. 90, 317 S.E.2d 193 (1984); Pope v. State, 172 Ga. App. 396, 323 S.E.2d 268 (1984); Heaton v. State, 175 Ga. App. 735, 334 S.E.2d 334 (1985); Roberts v. Grigsby, 177 Ga. App. 377, 339 S.E.2d 633 (1985); Edison v. State, 256 Ga. 67, 344 S.E.2d 231 (1986); Caldwell v. State, 256 Ga. 10, 354 S.E.2d 124 (1987); Holloway v. State, 257 Ga. 620, 361 S.E.2d 794 (1987); Waldrop v. Evans, 681 F. Supp. 840 (M.D. Ga. 1988); Jacobs v. Taylor, 190 Ga. App. 520, 379 S.E.2d 563 (1989); Jones v. State, 191 Ga. App. 561, 382 S.E.2d 612 (1989); Ledbetter v. Cannon, 192 Ga. App. 392, 384 S.E.2d 875 (1989); Watkins v. State, 259 Ga. 648, 386 S.E.2d 132 (1989); Zant v. Beck, 259 Ga. 756, 386 S.E.2d 349 (1989); Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991); Lawrence v. State, 201 Ga. App. 7, 410 S.E.2d 136 (1991); Snyder v. State, 201 Ga. App. 66, 410 S.E.2d 173 (1991); Stephens v. State, 201 Ga. App. 744, 412 S.E.2d 571 (1991); Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993); Mathis v. Zant, 851 F. Supp. 1572 (N.D. Ga. 1994); Palmer v. State, 271 Ga. 234, 517 S.E.2d 502 (1999); Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000); Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000); Brown v. State, 246 Ga. App. 60, 539 S.E.2d 545 (2000); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000); Trammel v. Bradberry, 256 Ga. App. 412, 568 S.E.2d 715 (2002); Hall v. Brannan, 284 Ga. 716, 670 S.E.2d 87 (2008); Hall v. Lance, 286 Ga. 365, 687 S.E.2d 809 (2010); Brower v. State, 334 Ga. App. 262, 779 S.E.2d 32 (2015); McElrath v. State, 308 Ga. 104, 839 S.E.2d 573 (2020).
Constitutionality
Procedures established under this section were constitutional. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
O.C.G.A. § 17-7-131 is not unconstitutionally vague and does not deny due process; the statute is sufficiently worded to inform a jury as to the meaning of a verdict of "mentally ill." Worthy v. State, 253 Ga. 661, 324 S.E.2d 431 (1985); Wilson v. State, 257 Ga. 444, 359 S.E.2d 891 (1987).
While the definition of "mentally ill" in O.C.G.A. § 17-7-131 is not a model of specificity, the definition is sufficient to inform the jury of the meaning of a verdict of guilty but mentally ill and is not so vague as to violate due process. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).
Definition of "mentally ill" is not unconstitutionally vague. Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985); Salter v. State, 257 Ga. 88, 356 S.E.2d 196 (1987).
Section does not constitute cruel and unusual punishment.
- Simply because O.C.G.A. § 17-7-131 provides that a defendant convicted as guilty but mentally ill will be treated with funds to be appropriated, and there may exist a possibility that funds may run out or not be appropriated, there is no violation of constitutional guarantees against cruel and unusual punishment. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).
Section is not unconstitutional application of ex post facto law.
- Verdict of guilty but mentally ill under O.C.G.A. § 17-7-131 was not an unconstitutional application of an ex post facto law merely because the crime occurred before the enactment of that section. Nelson v. State, 254 Ga. 611, 331 S.E.2d 554 (1985).
This section afforded a person due process of law prior to a final commitment order. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979).
Person is entitled to due process even if the person is committed temporarily to a state mental institution for evaluation. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979).
Due process must be afforded in sanity inquiry.
- Inquiry into the sanity of the person at the time of acquittal must be conducted so as to afford the person due process of law. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979).
Due process requires only that the insanity acquittee be given a right to a hearing, which can be waived if the insanity acquittee, or the acquittee's appointed representative or guardian ad litem, declines to file an application for release. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
Proving mental retardation does not violate due process.
- Requirement that mental retardation must be proved beyond a reasonable doubt does not violate due process. Mosher v. State, 268 Ga. 555, 491 S.E.2d 348 (1997).
Inmate required to prove mental retardation.
- Since O.C.G.A. § 17- 7-131 was previously held to be constitutional, the inmate was required to bear the burden of proving the inmate's alleged mental retardation beyond a reasonable doubt. Head v. Stripling, 277 Ga. 403, 588 S.E.2d 226 (2003).
Constitutionality of provisions regarding release.
- Provisions of this section disallowing the filing of another application for release until one year has elapsed from the denial of the last preceding application and allowing release only upon court order do not offend current concepts of due process or equal protection of the laws. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979).
O.C.G.A. § 17-7-131 is not violative of due process through the statute's requirement of judicial approval for the release of insanity acquittees not convicted of dangerous crimes, the statute's presumption of continuing insanity at the release hearing, or the statute's placement of the burden of proof on the insanity acquittee at the release hearing. Benham v. Ledbetter, 785 F.2d 1480 (11th Cir. 1986).
Provision in O.C.G.A. § 17-7-131(f)(3) that a court, after rendering an adverse release decision in a release hearing, may not hear a further release application by the insanity acquittee until 12 months have elapsed, is not violative of due process, since insanity acquittees may, during the interval, bring habeas corpus petitions challenging the legality of their detention. Benham v. Ledbetter, 785 F.2d 1480 (11th Cir. 1986).
Constitutionality of guilty but mentally ill category.
- Creation of the category of guilty but mentally ill is not unconstitutionally vague and thus lacking in due process. Dimauro v. State, 185 Ga. App. 524, 364 S.E.2d 900 (1988).
Constitutionality of burden of proof of fitness for release.
- Insanity acquittee is not denied equal protection of the law, if the acquittee is required to bear the burden of proving the acquittee's fitness for release while other civil committees are not. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).
Prohibition against execution of mentally retarded.- O.C.G.A. § 17- 7-131 does not wholly erode the constitutional prohibition against execution of the mentally retarded. Ferrell v. Head, 398 F. Supp. 2d 1273 (N.D. Ga. 2005).
Constitutionality of differing treatment.- Judgment of acquittal by reason of insanity provides the state a rational reason for treating "insanity acquittees" differently from other persons involuntarily committed to state health facilities. Specifically, insanity acquittees have no right to be free of the burden of proof in commitment and release hearings. Also, it is not unreasonable to presume continued mental illness based on a judgment of not guilty by reason of insanity. Benham v. Ledbetter, 609 F. Supp. 125 (N.D. Ga. 1985), aff'd, 785 F.2d 1480 (11th Cir. 1986).
Life imprisonment and civil commitment did not constitute double jeopardy.
- Civil commitment, following finding that the defendant was not guilty by reason of insanity of malice murder, and a sentence of life imprisonment based on convictions for felony murder, with a finding of guilty but mentally ill, did not violate the defendant's double jeopardy rights under U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, as the civil commitment procedure under O.C.G.A. § 17-7-131 was not punitive in nature. Shepherd v. State, 280 Ga. 245, 626 S.E.2d 96 (2006), overruled on other grounds by McElrath v. State, 2020 Ga. LEXIS 127 (Ga. 2020).
"Insane," "Mentally Ill," "Intellectual Disability" Defined
What constitutes "mental illness."
- Person who is insane, that is, who is not legally responsible for the person's own actions because the person cannot distinguish between right and wrong is mentally ill under this definition. Clark v. State, 151 Ga. App. 853, 261 S.E.2d 764 (1979), aff'd, 245 Ga. 629, 266 S.E.2d 466 (1980).
What constitutes delusional compulsion.
- One is not criminally responsible when, though one has reason sufficient to distinguish between right and wrong, as to a particular act about to be committed, yet, in consequence of some delusion, the will is overmastered and there is no criminal intent, provided that the act itself is connected with the peculiar delusion under which the person is laboring. Hargroves v. State, 179 Ga. 722, 177 S.E. 561 (1934).
Intermittent insanity is no excuse or justification for crime, unless the defendant was incapable of knowing right from wrong at the time the act was committed. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962).
Weakmindedness alone is not a defense to crime. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962).
Mental abnormality alone is not a defense to crime. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962).
Mentally irresponsible at time of offense.
- Mental abnormality is not a defense unless the accused was, at the time of the commission of the offense, mentally irresponsible under the test recognized by law in this state. The only exception to this is delusional insanity. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962).
Test of mental irresponsibility.
- Test is whether the accused had reason sufficient to distinguish between right and wrong in relation to the particular offense committed. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962).
Defense of drug-caused mania or insanity.
- Defense of mania or insanity, caused by the use of a drug, permanent and fixed in character, so as to destroy the knowledge of right and wrong as to the act, with the person laboring under such infirmity not responsible for the person's crime, must amount to a plea of insanity at the time of the commission of the act under this section. Brand v. State, 123 Ga. App. 273, 180 S.E.2d 579 (1971).
Mental retardation definition not met.
- Defendant's motion for a new trial on the basis that the verdict was contrary to the evidence was properly denied when the defendant's interaction with others, defendant's letter writing, newspaper reading, and sports activities all indicated that the defendant did not meet the statutory definition of mental retardation in O.C.G.A. § 17-7-131(a)(3). Foster v. State, 272 Ga. 69, 525 S.E.2d 78, cert. denied, 531 U.S. 890, 121 S. Ct. 214, 148 L. Ed. 2d 151 (2000).
In a death penalty case, a habeas court did not err in considering habeas corpus petitioner's claim, raised for the first time in the habeas petition, that the petitioner was mentally retarded; the habeas court properly found that the petitioner's intelligence test scores and school records failed to prove that the petitioner met the definition of mentally retarded under O.C.G.A. § 17-7-131(a)(3). Head v. Ferrell, 274 Ga. 399, 554 S.E.2d 155 (2001).
In a death penalty case, the habeas corpus court correctly held that the defendant was not mentally retarded, and could thus be executed, when the evidence demonstrated that the defendant committed other crimes, one punishable by death, which required a certain degree of planning and intelligence, the defendant's school records were devoid of any indication that the defendant was retarded, and crime scene photographs supported the state's version of the crime scene and illustrated the resourcefulness displayed by the defendant to accomplish the defendant's illustrated purpose. Morrison v. State, 276 Ga. 829, 583 S.E.2d 873 (2003), cert. denied, 541 U.S. 940, 124 S. Ct. 1662, 158 L. Ed. 2d 363 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Inmate was denied habeas corpus relief on a claim that the defendant was ineligible for the death penalty because the defendant was mentally retarded because the defendant failed to offer any evidence that the state habeas court and the state supreme court's conclusions were based on an unreasonable determination of the facts in light of the evidence presented; the state habeas court noted that the inmate provided no concrete evidence to demonstrate that the defendant fell within the scope of the definition of mental retardation under O.C.G.A. § 17-7-131, and the state supreme court rejected the claim citing numerous tests and records indicating that the inmate's mental function, while below average, did not render the defendant mentally retarded. Ferrell v. Head, 398 F. Supp. 2d 1273 (N.D. Ga. 2005).
In a habeas corpus proceeding with regard to a defendant's conviction for murder and receiving the death sentence, a jury's determination that the defendant was not mentally retarded was upheld as a rational trier of fact could have found that the defendant failed to meet the burden of proof that the defendant was mentally retarded by a preponderance of the evidence since the evidence showed that the jury heard evidence regarding six intelligence quotient (IQ) tests administered to the defendant during the defendant's lifetime, with scores of 78, 84, 85, 68, 66 (which, due to a mathematical error, should have been 70), and 89; expert testimony established that IQ scores between 70 and 84, while indicating borderline intellectual functioning, did not indicate mental retardation; and there was testimony that the defendant checked out prison library books on a regular basis and was able to use the computer. Further, three state experts who examined the defendant opined that the defendant was not mentally retarded and three experts for the defendant disagreed and, although evidence was adduced indicating that the defendant exhibited brain dysfunction, the defendant's own expert testified that there was no way to determine what caused the dysfunction and that a person can have brain dysfunction without being mentally retarded, with that expert also testifying that the use of drugs and alcohol can have a significant impact on brain function and that the defendant had reported using drugs and alcohol. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Jury Charge
No "guilty but mentally ill" verdict for misdemeanor.
- Trial court erred in permitting the jury to consider a verdict of guilty but mentally ill on a misdemeanor count of making harassing telephone calls as that verdict is available only in felony cases. Converting, on appeal, the verdict to guilty would have constituted an impermissible substantive change in the verdict, violative of O.C.G.A. § 17-9-40, and therefore the verdict had to be reversed. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996).
When jury charge as to insanity mandatory.
- This section made it mandatory for the trial judge to instruct the jury in line with the statute's provisions. Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953).
When a defendant pleads not guilty by reason of insanity, it is mandatory that the trial judge shall instruct the jury in line with the provisions of this section. Sanford v. State, 217 Ga. 825, 125 S.E.2d 478 (1962).
When the evidence makes insanity at the time of the commission of an alleged offense an issue, it is mandatory for the trial judge to charge the provisions of this section. Morgan v. State, 224 Ga. 604, 163 S.E.2d 690 (1968).
It was mandatory to charge the first part of this section relating to the form of the jury's verdict in a case involving insanity at the time of the commission of the act. Hulsey v. State, 233 Ga. 261, 210 S.E.2d 797 (1974).
Once the issue of insanity at the time of the commission of the alleged offense is raised by the evidence it is mandatory upon the trial judge to charge the jury under the provisions of this section relating to the form of the verdict in case the jury should find the defendant not guilty by reason of insanity. Williams v. State, 237 Ga. 399, 228 S.E.2d 806 (1976); Moore v. State, 142 Ga. App. 145, 235 S.E.2d 577 (1977).
O.C.G.A. § 17-7-131 requires that in all criminal trials when an accused contends that the accused was insane or mentally incompetent at the time the acts charged against the accused were committed that the trial judge instruct the jury that in case of acquittal on such contention to specify in the jury's verdict that an acquittal on account thereof is because of mental incompetence or insanity at the time of the commission of the act. Neal v. State, 160 Ga. App. 498, 287 S.E.2d 399 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).
O.C.G.A. § 17-7-131 mandates that the charge set forth in subparagraph (b)(3)(B) shall be given and the trial court erred by failing to give the charge. Spraggins v. State, 258 Ga. 32, 364 S.E.2d 861 (1988).
Trial court did not err in giving the instructions mandated by O.C.G.A. § 17-7-131(b)(3), as such ensured that the jury did not improperly concern itself with the lesser-known punishments associated with an insanity defense. Foster v. State, 306 Ga. 587, 832 S.E.2d 346 (2019).
Erroneous but harmless charge.
- Since mental illness is not an element of the underlying offense, the burden of persuasion as to that issue is on the defendant. Further, the statutory requirement that mental illness be proved beyond a reasonable doubt is not constitutionally infirm. When the trial court instructs the jury that the court would be authorized to find the defendant guilty but mentally ill if the jury believed beyond a reasonable doubt that the defendant was guilty, but believed by a preponderance of the evidence that the defendant was mentally ill at the time of the commission of the offense, such a charge, while erroneous, has the effect of reducing the burden the defendant bears of showing mental illness, is beneficial, and does not require reversal. Hood v. State, 187 Ga. App. 88, 369 S.E.2d 348 (1988).
Trial court's instruction that if the jury believed beyond a reasonable doubt that the defendant was guilty and if the jury also believed by a preponderance of the evidence that the defendant was mentally ill at the time of the offense, then the jury would be authorized to find the defendant guilty but mentally ill, was erroneous, but harmless. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988).
Even though the charge did not adequately instruct the jury concerning the alternative verdict of not guilty by reason of insanity, the error was harmless because no evidence was presented to support such a verdict. McDuffie v. State, 210 Ga. App. 112, 435 S.E.2d 452 (1993).
Even though the verdict form had erroneously provided the option of "guilty but mentally ill" instead of "guilty but mentally retarded," the court's curative actions were sufficient to render the error harmless. Lyons v. State, 271 Ga. 639, 522 S.E.2d 225 (1999).
Though the trial court erred in charging the jury in defendant's murder trial by including the language in the Standard Pattern Jury Instruction on mental retardation that improperly added "at the time of the commission of the offense," no reversible error occurred because the trial court also included the requirement that the impairments in adaptive behavior had to manifest during defendant's developmental period. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005).
O.C.G.A. § 17-7-131 does not unconstitutionally shift the burden of proof. Because mental illness is not an element of the underlying offense, the defendant bears the burden of persuasion on that issue; and because a state may constitutionally require a criminal defendant to prove an insanity defense beyond a reasonable doubt, the provision in O.C.G.A. § 17-7-131(c)(2) that mental illness be proved beyond a reasonable doubt is not constitutionally infirm. Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 816, 83 L. Ed. 2d 809 (1985); Hood v. State, 187 Ga. App. 88, 369 S.E.2d 348 (1988).
Statute places no burden on a defendant to prove that the defendant is not mentally ill, or that the defendant is guilty but mentally ill. The burden is on the state to prove that the defendant is guilty of the crime charged, including the requisite element of intent, beyond a reasonable doubt. The burden is on the defendant to prove defendant is not guilty by reason of insanity by a preponderance of the evidence. This latter requirement is constitutional. Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985).
If the defendant pleads insanity, has placed the defendant's mental health in issue, and presumably has introduced evidence of the defendant's mental illness, this does not constitute impermissible burden shifting for the court to charge the jury that it may consider a verdict of guilty but mentally ill. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).
Failure to give such mandatory instruction is error. Sanford v. State, 217 Ga. 825, 125 S.E.2d 478 (1962).
Failure to give a charge to the jury when required by O.C.G.A. § 17-7-131 (3)(b) is reversible error. Guilford v. State, 258 Ga. 253, 368 S.E.2d 116 (1988).
Giving a summary rather than a complete charge on insanity and mental illness as required by O.C.G.A. § 17-7-131 (3) was error. Moore v. State, 217 Ga. App. 207, 456 S.E.2d 708 (1995).
Failure to instruct on "guilty but retarded" was harmless error.
- Charge on the guilty but mentally retarded option under O.C.G.A. § 17-7-131(c) was mandatory, but failure to charge was harmless beyond a reasonable doubt, since the psychiatrist testified that the defendant was highly articulate, well-spoken and very bright, and that the defendant was so articulate and coherent that the psychiatrist had no reason to suspect mental retardation and the defendant presented no evidence to the contrary. Roberts v. State, 257 Ga. App. 296, 570 S.E.2d 708 (2002).
Failure to instruct on "guilty but mentally retarded" reversible error.
- When the defendant's primary defense alleged mental incompetence, and expert testimony advanced that the defendant was mentally retarded, the trial court's failure to instruct the jury that the jury could consider a verdict of guilty but mentally retarded in addition to verdicts of guilty, not guilty, not guilty by reason of insanity, and guilty but mentally ill was reversible error. Mack v. State, 206 Ga. App. 402, 425 S.E.2d 671 (1992).
Failure to properly instruct jury requires grant of new trial. Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953).
Instruction at sentencing phase not authorized.
- In a prosecution for malice murder, the trial court did not err in refusing to charge at the sentencing phase that the jury could not return a death sentence if the jury found by a preponderance of the evidence that the defendant was mentally retarded; the procedure to foreclose the execution of mentally retarded defendants had been followed at the guilt-innocence phase of the trial when the jury rejected a "guilty but mentally retarded" verdict and, at the sentencing phase, the issue of the defendant's purported mental retardation was no longer conclusive as to the defendant's sentence, but was merely one of the mitigating factors which the jury would be authorized to consider. Burgess v. State, 264 Ga. 777, 450 S.E.2d 680 (1994), cert. denied, 515 U.S. 1133, 115 S. Ct. 2559, 132 L. Ed. 2d 813 (1995).
If there is no evidence to support a charge on insanity under O.C.G.A. §§ 16-3-2 and16-3-3, then a charge under O.C.G.A. § 17-7-131, with regard to the defense of insanity, never arises. Shirley v. State, 149 Ga. App. 194, 253 S.E.2d 787 (1979).
Because the defendant failed to present any evidence from which a jury could conclude that the defendant did not know right from wrong when the defendant committed the criminal acts, the trial court did not err in declining to charge the jury pursuant to O.C.G.A. § 17-7-131(b)(1)(C) that the defendant could be found not guilty by reason of insanity under O.C.G.A. § 16-3-2; the defendant introduced no evidence of insanity, only lay witness testimony about generalized problems. McBride v. State, 314 Ga. App. 725, 725 S.E.2d 844 (2012).
Defendant's ineffective assistance of counsel claim failed based on the defense attorney not requesting a jury charge of not guilty by reason of insanity because the attorney testified at the hearing on the motion for a new trial that the attorney considered it but found no evidence to support such a defense theory; thus, it was reasonable trial strategy. Hosley v. State, 322 Ga. App. 425, 746 S.E.2d 133 (2013).
Counsel not ineffective for not raising issue of defendant's mental health.
- Because the defendant produced no expert testimony at the motion for new trial showing that a psychological evaluation would have aided an insanity defense, the defendant's claim that counsel was ineffective for failing to investigate and raise the issue of the defendant's mental health rested on speculation and failed for lack of demonstrated prejudice. Perkins v. State, 328 Ga. App. 508, 759 S.E.2d 626 (2014).
If the defendant did not admit to committing the act charged.
- If the defendant did not admit to committing any act that constitutes aggravated assault on a peace officer, the defendant did not establish the evidentiary foundation necessary for charging the jury on the affirmative defense of insanity. Kelley v. State, 235 Ga. App. 177, 509 S.E.2d 110 (1998).
It was mandatory to charge the first part of former Code 1933, § 27-1503 (see O.C.G.A. § 17-7-131) relating to the form of the jury's verdict. Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977).
Jury charge as to form of verdict is only mandatory charge.
- Only portion of this section which was mandatory for the judge to charge is that part dealing with the form of the verdict. Albert v. State, 152 Ga. App. 708, 263 S.E.2d 685 (1979).
Charging entire language of section.
- While inappropriate, it was not harmful error when the court charges the entire language of this section. Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977).
Trial court did not err when the court substituted the words "became clear" for "manifested" with regard to the statutory definition of mental retardation contained within O.C.G.A. § 17-7-131(a)(3) because the terms "manifested" and "became clear" are synonymous under those circumstances. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005).
Charging of provisions relating to consequences of acquittal for insanity.
- It was inappropriate to charge the part of former Code 1933, § 27-1503 (see O.C.G.A. § 17-7-131) relating to the consequences of a verdict of acquittal for insanity by the jury, but charging the latter part of that section and Ga. L. 1969, p. 505 (see O.C.G.A. § 37-3-85) in such a case, though inappropriate, does not amount to harmful error requiring a reversal of the judgment. Hulsey v. State, 233 Ga. 261, 210 S.E.2d 797 (1974).
Charging the part of former Code 1933, § 27-1503 (see O.C.G.A. § 17-7-131) and Ga. L. 1969, p. 505 (see O.C.G.A. § 37-3-85), relating to the consequences of acquittal for insanity, though inappropriate, does not amount to harmful error requiring a reversal of the judgment. Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975), rev'd on other grounds, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).
If the substance of former Code 1933, § 27-1503 (see O.C.G.A. § 17- 7-131) was sufficiently charged, it was not necessary to charge that section in haec verba. Johnston v. State, 232 Ga. 268, 206 S.E.2d 468 (1974).
Not including mandatory language not reversible error.
- Court's failure to charge the mandatory language of O.C.G.A. § 17-7-131(b)(3)(A) (proceedings upon plea of insanity), by failing to include the phrase "if ever" when explaining when the court is allowed to release the defendant from a mental health facility, was not reversible error, nor did the statute deprive the defendant of a fair trial or effective assistance of counsel. The charge given specified that the court would retain control over the defendant's release and did not imply that the court would be required at some point to order the defendant's release. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996).
Although exclusion of the words "if ever" is harmless error in certain contexts, the better practice is to give the charge exactly as provided in O.C.G.A. § 17-7-131. Griffin v. State, 267 Ga. 586, 481 S.E.2d 223 (1997).
Subsequent disposition of the prisoner need not be explained to the jury. Biddy v. State, 138 Ga. App. 4, 225 S.E.2d 448 (1976).
Informing jury of consequences of verdict.
- Absent exceptional circumstances not present here, witnesses in a trial on the issue of the defendant's mental retardation should not be examined or cross-examined in such a manner as to inject sentencing issues into the case, and the jury should not be informed that if the jury finds the defendant mentally retarded, the defendant's death sentence will be vacated. State v. Patillo, 262 Ga. 259, 417 S.E.2d 139 (1992).
Because the prosecutor did not inform the jury that the defendant could not receive a death sentence if found to be guilty but mentally retarded, and the trial court correctly charged the jury on the sentencing consequences of such a verdict, no reversible error occurred as a result of the district attorney stating during the guilt-innocence phase of closing argument that the defendant was not mentally retarded and couldn't hide behind it. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005).
Omitting statutory language in jury charge.
- If the charge as given by the trial court provided sufficient and proper guidelines for determining the defendant's guilt or innocence with regard to the defense of insanity, there was no error in the trial court's omission of O.C.G.A. § 17-7-131 from the court's charge. Taylor v. State, 174 Ga. App. 323, 329 S.E.2d 625 (1985).
Charge held proper.
- Trial court correctly charged the jury that the defendant's inability to evaluate the quality and consequences of the defendant's acts to the same degree as a normal or average person would not excuse the defendant if the defendant was able to distinguish between right and wrong. Adams v. State, 254 Ga. 481, 330 S.E.2d 869 (1985).
Improper charge held reversible error.
- Reversal was required when the trial court, in charging under O.C.G.A. § 17-7-131, failed to define "mentally ill" and "mentally retarded" and failed to state that the defendant would be incarcerated if the defendant were found to be guilty but mentally ill or guilty but mentally retarded. The court could not conclude that the jury was not misled or confused. Foster v. State, 283 Ga. 47, 656 S.E.2d 838 (2008).
Instruction adequate regarding charge of "guilty but mentally ill."
- See Ellis v. State, 176 Ga. App. 384, 336 S.E.2d 281 (1985).
Instruction when both defense of insanity and guilty but mentally ill raised.
- When the trial court charges the jury on the defense of insanity at the time of the crime, O.C.G.A. §§ 16-3-2 and16-3-3, and on guilty but mentally ill at the time of the crime, O.C.G.A. § 17-7-131, the trial court must make clear to the jury in the court's charge that if the jury finds the defendant did not have the mental capacity to distinguish between right and wrong (or acted because of delusional compulsion), the jury must find the defendant not guilty by reason of insanity and must not find the defendant guilty but mentally ill. Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985).
Charge stating that a verdict of "guilty but mentally ill" could be based upon a finding that defendant "committed the act alleged" and was mentally ill, was only a partially correct statement of the law; in addition to a finding that the defendant "committed the act alleged" and was mentally ill, a verdict of "guilty but mentally ill" must also be based upon a finding that the defendant was not legally insane and that the act was, therefore, a "crime" for which the defendant could be found "guilty." Foote v. State, 265 Ga. 58, 455 S.E.2d 579 (1995).
Instruction ambiguous on custody and control.
- Instruction to jury that a verdict of not guilty by reason of insanity would discharge the defendant from the offense charged, and the defendant "would be committed to the Department of Human Resources until he is no longer a danger to himself or others" was ambiguous with regard to the crucial issue of who would have custody and control of the defendant, and therefore constituted reversible error. Prophitt v. State, 183 Ga. App. 332, 358 S.E.2d 892 (1987).
Although the defendant suffered organic brain damage from an auto accident, the defendant was not deprived of defendant's Sixth Amendment right to defend oneself and develop substantive evidence at trial by the court's refusal to allow the defense to present evidence pertaining to the defendant's mental faculties, relevant to the issue of intent and the defendant's defenses of entrapment and coercion, and by a charge to the jury on guilty but mentally ill. Holder v. State, 194 Ga. App. 790, 391 S.E.2d 808 (1990).
Counsel not ineffective for failing to pursue affirmative defenses of insanity or mental illness.
- Defendant's counsel was not ineffective for failing to request a jury instruction on insanity or mental illness because the record indicated that trial counsel actually requested a charge on guilty but mentally ill that tracked O.C.G.A. § 17-7-131, although the record did not indicate why the charge was not given; and, even assuming trial counsel withdrew the request or waived the charge, counsel testified at the motion for new trial hearing that counsel made a strategic decision not to pursue the affirmative defenses of insanity or mental illness as the defendant maintained that the defendant did not commit the murder; and the evaluator had not concluded that the defendant was insane at the time of the murder. Smith v. State, 306 Ga. 556, 832 S.E.2d 379 (2019).
OPINIONS OF THE ATTORNEY GENERAL
Department's authority to transfer patients.
- This section authorized the Department of Human Resources to make intrastate hospital transfers of persons found not guilty by reason of insanity. Only when such proposed transfers were to be out of this state must the permission of the superior court be obtained. 1979 Op. Att'y Gen. No. 79-44.
When the contemplated transfer will be to a hospital in another state, out of the jurisdiction of the courts of this state, the superior court needs to be consulted so that the court can issue appropriate orders relative to retention of jurisdiction, discharge procedures, and other pertinent matters. 1979 Op. Att'y Gen. No. 79-44.
Scope of court supervision of discharge of criminally-committed patients.- This section gave the court more supervision over the final discharge of criminally-committed patients than over civilly-committed patients by requiring the criminally-committed patient to petition the committing court for the patient's release. This discharge supervision was not diminished by the authority of the Department of Human Resources to select the hospital to which criminally- committed patients were initially committed. Similarly, there was no further diminution of the court's role by granting to the department the authority to select the hospital to which the patient was later transferred so long as the second hospital was within the state. 1979 Op. Att'y Gen. No. 79-44.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, §§ 33 et seq., 43 et seq.
ALR.
- Constitutionality of statutes relating to determination of plea of insanity in criminal case, 67 A.L.R. 1451.
Constitutionality of statute relating to insanity as defense to crime, 74 A.L.R. 265.
Jurisdiction of proceedings for restoration to competency of one who has allegedly regained sanity after an adjudication of incompetency, 121 A.L.R. 1509.
Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541.
Investigation of present sanity to determine whether accused should be put, or continue, on trial, 142 A.L.R. 961.
Irresistible impulse as excuse for crime, 173 A.L.R. 391.
Insanity of accused at time of commission of offense, not raised at trial, as ground for habeas corpus or coram nobis after conviction, 29 A.L.R.2d 703.
Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.
Requirement of unanimity of verdict in proceedings to determine sanity of one accused of crime, 42 A.L.R.2d 1468.
Counsel's right, in consulting with accused as client, to be accompanied by psychiatrist, psychologist, hypnotist, or similar practitioner, 72 A.L.R.2d 1120.
Release of one committed to institution as consequence of acquittal of crime on ground of insanity, 95 A.L.R.2d 54.
Instructions in criminal case in which defendant pleads insanity as to his hospital confinement in the event of acquittal, 11 A.L.R.3d 737.
Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714.
Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.
Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.
Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital records, 55 A.L.R.3d 551.
Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.
Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity, 2 A.L.R.4th 934.
Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 1043.
Competency to stand trial of criminal defendant diagnosed as "mentally retarded" - modern cases, 23 A.L.R.4th 493.
Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding, 26 A.L.R.4th 995.
"Guilty but mentally ill" statutes: validity and construction, 71 A.L.R.4th 702.
Power of state trial court in criminal case to change venue on its own motion, 74 A.L.R.4th 1023.
Right of state prison authorities to administer neuroleptic or antipsychotic drugs to prisoner without his or her consent - state cases, 75 A.L.R.4th 1124.
Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 A.L.R.4th 659.
Propriety of imposing capital punishment on mentally retarded individuals, 20 A.L.R.5th 177.
Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 A.L.R.5th 777.
Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.
Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.
Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.
Extended commitment of one committed to institution as consequence of acquittal of crime on ground of insanity, 52 A.L.R.6th 567.
PART 3 CHANGE OF VENUE
Cross references.
- Venue generally, Ga. Const. 1983, Art. VI, Sec. II and § 17-2-2.
Law reviews.- For article, "Rule of Law Doesn't Just Happen," see 16 (No. 2) Ga. St. B.J. 24 (2010).
JUDICIAL DECISIONS
Discretion of court in ruling on venue motions.
- Grant or denial of motions for change of venue in criminal cases lies largely within the discretion of the trial judge. The exercise of that discretion will not be reversed on appeal unless it is made to appear that there has been an abuse of discretion. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3223, 49 L. Ed. 2d 1218 (1976).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, § 504 et seq.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 1 et seq.
ALR.
- Dismissal, nolle prosequi, or mistrial after change of venue in criminal case, as affecting jurisdiction or power of courts of respective districts as to subsequent proceedings, 18 A.L.R. 714.
Constitutionality of statute for prosecution of offense in county other than that in which it was committed, 76 A.L.R. 1034.
Change of venue by state in criminal case, 46 A.L.R.3d 295.
Choice of venue to which transfer is to be had, where change is sought because of local prejudice, 50 A.L.R.3d 760.
Power or duty of prosecuting attorney to proceed with prosecution after change of venue, 60 A.L.R.3d 864.