☢ test - Í

Whitus v. State, 287 Ga. 801, 700 S.E.2d 377 (September 20, 2010). Defendant’s malice murder and related convictions affirmed; no ineffective assistance shown from counsel’s failure to seek a second psychiatric evaluation after state evaluation. “ Ake [ v. Oklahoma, 470 U.S. 68 (105 S.Ct. 1087, 84 L.Ed.2d 53) (1985)] rejected the notion that an ‘“indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.” [Cit.]’ Callaway v. State, 208 Ga.App. 508, 510-511(1) (431 S.E.2d 143) (1993) (also recognizing that ‘“‘[w]hether to grant the motion (for a second psychiatric examination) was in the discretion of the trial court’”’).” Durrence v. State, 287 Ga. 213, 695 S.E.2d 227 (May 17, 2010). 1. Defendant was properly found guilty of malice murder but mentally ill; defendant’s prior involuntary commitment was not a finding of insanity , so trial court properly ruled that defendant was presumed sane and had burden of establishing insanity by preponderance of evidence. “ Bipolar disorder is a mental illness or mental abnormality but is not the equivalent of legal insanity. See Lawrence v. State, 265 Ga. 310(2) (454 S.E.2d 446) (1995); Nelms v. State, 255 Ga. 473, 475 (340 S.E.2d 1) (1986).” Overruling “ Butler v. State, 252 Ga. 135 (311 S.E.2d 473) (1984), in which this Court erroneously equated an order of the probate court finding one to be mentally ill with an adjudication of insanity pursuant to OCGA § 16-3-2.” 2. No error in requiring that defendant be medicated to make him competent to stand trial. “Appellant's claim that he was denied the opportunity to testify because he was forced to take medication to be legally sane at trial is waived. His failure to raise an objection to his medical treatment before or during trial constitutes a forfeiture of his right to raise the issue on appeal. ‘We note that consistent with our holding in Lawrence, the jury was made aware of the change in appellant's behavior as a result of his medications through witness testimony and the jury charge correctly informed jurors that appellant was under the influence of medication during trial, his behavior during trial was conditioned by that medication, and the insanity defense was to be evaluated as to the time the alleged offenses were committed.’ See Mullins v. State, 270 Ga. 450(3) (511 S.E.2d 165) (1999). See also Riggins v. Nevada, 504 U.S. 127 (112 S.Ct. 1810, 118 L.Ed.2d 479) (1992); Lawrence v. State, 265 Ga. 310(3)(a) (454 S.E.2d 446) (1995) (defendant not entitled to have jury view him in unaltered, undrugged state where treatment with medication is ‘medically appropriate and, considering less intrusive alternatives, essential for the sake of the accused's own safety or the safety of others’).” Pope v. State, 286 Ga. 1, 685 S.E.2d 272 (October 19, 2009). In defendant’s capital murder prosecution, trial court erred in sua sponte ordering mental evaluation of defendant despite noting that “it has seen no reason to doubt Pope's competence.” Experienced defense counsel specifically declined to file an insanity defense or seek an evaluation. “We think that the record is clear that the trial court ordered a mental examination of Pope not because of concerns over his competence but, instead, solely for the purpose of ensuring that claims regarding mental health are not eventually raised on habeas corpus. Although the trial court's motivation is understandable, its actions disregard the adversarial process upon which our criminal justice system is founded. Pope has well-qualified defense counsel, and the trial court should not intrude into Pope's defense preparations absent some indication that Pope is incompetent or that trial counsel is acting unethically. Accordingly, we conclude that the trial court erred by unjustifiably ordering Pope to undergo a psychological examination.” Supreme Court expresses concern that State may ultimately obtain the evaluation and use it against defendant, infringing on his rights against compulsory self-incrimination. “[W]e … direct the trial court to keep the report under seal unless Pope gives notice to the trial court that he intends to present his own expert mental health testimony at trial.” Mathis v. State, 299 Ga.App. 831, 684 S.E.2d 6 (July 31, 2009). No abuse of discretion in denying continuance for lack of mental evaluation, where trial court directed defense “to ensure that the evaluation was completed, and he failed to do so. Further, Mathis fails to point to any evidence in the record demonstrating that he was incompetent, and we have found none.” Schofield v. Cook, 284 Ga. 240, 663 S.E.2d 221 (June 30, 2008). “‘[T]he statute that provides for a verdict of guilty but mentally ill does not preclude a death sentence as the result of such a verdict.’ Lewis v. State, 279 Ga. 756, 764(12) (620 S.E.2d 778) (2005).” Accord, Martin (November 2, 2015), above. Smith v. State, 284 Ga. 33, 663 S.E.2d 155 (June 30, 2008). Murder conviction reversed; trial court erred in treating defendant’s sleepwalking defense as an insanity defense. “‘A defense related to but different from the defense of insanity is that of unconsciousness, often referred to as automatism: one who engages in what would otherwise be criminal conduct is not guilty of a crime if he does so in a state of unconsciousness or semi-consciousness. Although this is sometimes explained on the ground that such a person could not have the requisite mental state for commission of the crime, the better rationale is that the individual has not engaged in a voluntary act.’ 2 Wayne R. LaFave, Substantive Criminal Law, p. 33 (2nd ed., 2003). In this vein, the Model Penal Code provides that a person who commits an act during