☢ test - Í

Martin v. Barrett, 279 Ga. 593, 619 S.E.2d 656 (September 19, 2005). 1. Habeas court properly granted habeas relief. Trial counsel in defendant’s prosecution for aggravated child molestation provided ineffective assistance where counsel “was notified prior to trial that Barrett had been hospitalized for treatment of mental illness, but neither of his attorneys obtained the records or requested an evaluation of him by a mental health expert. The habeas court further found that this failure to investigate was the result of inattention rather than strategic choice and that, but for this deficient performance, a reasonable probability exists that Barrett would have been found legally insane at the time of the crimes, incompetent to stand trial, or guilty but mentally ill.” “Ordinarily, the lack of investigation into a previous mental hospitalization is reasonable when an expert has determined that the defendant is fit to stand trial or that he was sane at the time of the offense. [Cits.] In the absence of such determination, however, ‘where a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance. [Cits.]’ (Emphasis omitted.) Brown v. Sternes, 304 F.3d 677, 694(III)(B)(1) (7 th Cir., 2002).” Attorneys’ own observations – that defendant appears to be in good mental health – are inadequate in the face of notice that investigation is warranted. “‘Where a condition may not be visible to a layman, counsel cannot depend on his or her own evaluation of someone’s sanity once he has reason to believe an investigation is warranted because, where such a condition exists, the defendant’s attorney is the sole hope that it will be brought to the attention of the court.’ (Emphasis in original.) Bouchillon v. Collins, [907 F.2d 589, 597(II)(B) (5 th Cir., 1990)]. Here, Barrett’s attorney knew of his recent hospitalization and treatment for a mental illness. Thus, defense counsel in this case could not reasonably conclude ‘that further investigation would have been fruitless.’ Wiggins v. Smith, [539 U.S. 510, 525(II)(B)(1), 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)]. An attorney’s failure to investigate is unreasonable where, as the habeas court found to be the case here, it resulted from inattention, and not from reasoned strategic judgment. Wiggins v. Smith, supra at 526(II)(B)(1), 534(II)(B)(3).” 2. “ With respect to the prejudice prong, the habeas court found that readily available psychiatric records show that Barrett suffers from a form of Bipolar I Disorder which includes psychotic episodes of auditory and visual hallucinations. The only expert to testify at the habeas hearing was a properly qualified psychiatrist who reviewed Barrett’s medical records and examined him. Although this expert’s testimony related to Barrett’s mental state years earlier and was not definitive, it nevertheless supported the habeas court’s finding of a reasonable probability that, under the appropriate legal standards, Barrett might have been found to be incompetent to stand trial, legally insane at the time of the crimes, or guilty but mentally ill.” Standard requires “‘only “a reasonable probability” of a different outcome, not that a different outcome would have been certain or even “more likely than not.” [Cit.]’ Schofield v. Gulley, [279 Ga. 413, 614 S.E.2d 740] (June 6, 2005).” Bryant v. State, 274 Ga. 798, 560 S.E.2d 23 (February 25, 2002). Trial court properly denied defendant’s motion for new trial. Held, defendant’s counsel not ineffective for failing to seek independent DNA testing and blood evidence or for allegedly failing to diligently pursue defendant’s alibi because defense counsel determined that DNA results were valid. Accord, Moore (September 9, 2013), above. Madge v. State, 245 Ga.App. 848, 538 S.E.2d 907 (September 11, 2000). Convictions for selling marijuana and giving false name affirmed; no ineffective assistance based on failure to seek funds for an expert witness to test the marijuana independently. 1. Counsel knew he could request funds for an expert, but instead studied the state’s testing and cross-examined the crime lab witnesses. “Madge … has not produced evidence of record that establishes the inadequacy of the State’s methods of testing drugs. Madge cannot show, therefore, that there is a reasonable probability that, but for trial counsel’s failure to hire an expert witness, the outcome of the trial would have been different. Although there was general testimony at the hearing about the reliability of the tests, Madge has not shown what his expert’s testimony would have been in this case or how it would have affected the outcome of the trial.” 2. “It is only in retrospect that [trial counsel] thinks it would have been better to hire an expert. We do not judge effectiveness of counsel by hindsight or by what present counsel would have done. Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362 (1985).” O’Brien v. State, 242 Ga.App. 344, 529 S.E.2d 657 (February 11, 2000). DUI conviction affirmed; “we agree with the trial court's finding that counsel's performance was not deficient. Counsel's failure to subpoena medical doctors is understandable, because no experts had been retained by O'Brien. She was not willing to pay for a doctor to testify.” Dewberry v. State, 271 Ga. 624, 523 S.E.2d 26 (November 1, 1999). Defendant’s murder conviction affirmed; no ineffective assistance where counsel failed to “request[ ] funds for an independent examination of King's body, to determine whether there were any possible explanations for the head trauma other than an attack with a blunt instrument. As his lawyer testified, … he never had any reason to question the finding of the medical examiner as to the victim's cause