☢ test - Í

that she stabbed Garland in the ‘heat of passion.’ By doing so, he successfully convinced the jury to reject the murder charge contained in the indictment. Under these circumstances, the trial court properly denied Breland’s ineffective assistance claim. See Perry [ v. State, 269 Ga.App. 178, 181(2), 603 S.E.2d 526 (2004)]; Morris v. State, 226 Ga.App. 535, 539(2)(b), 488 S.E.2d 685 (1997). Compare Martin [ v. Barrett, 279 Ga. 593, 595, 619 S.E.2d 656 (2005)] (defense counsel’s failure to investigate defendant’s sanity unreasonable where counsel knew of defendant’s recent hospitalization and treatment for mental illness). Accordingly, her allegation of error on this ground presents no basis for reversal.” Accord, Daniels v. State , 296 Ga.App. 795, 676 S.E.2d 13 (March 20, 2009); Williams v. State , 326 Ga.App. 418, 756 S.E.2d 650 (March 20, 2014). Scott v. State, 281 Ga.App. 106, 635 S.E.2d 582 (August 14, 2006). “‘If a defendant wishes to claim ineffectiveness based on trial counsel’s failure to request a psychiatric evaluation, it is not enough to show merely that counsel unreasonably failed to inquire into his mental state – he must show a likelihood that such an evaluation would have affected the outcome at trial.’ Barber v. State, 236 Ga.App. 294, 298(4) (512 S.E.2d 48) (1999). ‘In addition to the evidence presented at the new trial hearing, ..., the trial judge [is] authorized to consider the overall trial proceedings in determining [the defendant’s] competency at the time of trial.’ Morris v. State, 226 Ga.App. 535, 538(2) (488 S.E.2d 685) (1997). There is nothing in the trial record to indicate that an evaluation of Scott’s mental state would have affected the outcome.” Mann v. State, 276 Ga.App. 720, 624 S.E.2d 208 (November 22, 2005). In his prosecution for aggravated assault, defendant presented an insanity defense. One psychologist testified to his own findings and those of a second psychologist, but the second psychologist’s testimony was excluded because defense counsel had failed to disclose him on the witness list after opting in to reciprocal discovery. On motion for new trial, trial court found counsel’s representation ineffective for failing to list the second psychologist on the witness list; but found no prejudice to defendant as the first psychologist was able to testify as to the work and conclusions of both. Held, the evidence supported this conclusion by the trial court. 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).”

Made with FlippingBook Ebook Creator