¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: February 21, 2023
¶4 S22A1003. TAYLOR v. THE STATE.
¶5 WARREN, Justice.
¶6 After a jury trial in December 2013, Jeremy Gene Taylor was
¶7convicted of the malice murder of Eric Bolar and the aggravated
¶8battery of Seaborn Roberts.1 Taylor raises five claims of error on
¶9appeal: that (1) the trial court abused its discretion by excluding
¶10evidence about Taylor’s mental health; (2) the trial court erred by
¶11sentencing Taylor based on an inference that Taylor did not accept
¶12 1 The crimes occurred on August 3, 2011. On August 23, 2011, a Richmond County grand jury indicted Taylor on three counts: malice murder, felony murder, and aggravated battery. After a jury trial from December 16 to 18, 2013, Taylor was found guilty on all counts. On December 18, 2013, Taylor was sentenced to life in prison without the possibility of parole for malice murder and 20 years to be served consecutively for aggravated battery. The felony-murder count was vacated by operation of law. Taylor filed a timely motion for new trial on December 27, 2013, which he amended on November 24, 2020. On January 26, 2022, the trial court denied Taylor’s motion for new trial, as amended. Taylor timely filed a notice of appeal on February 7, 2022. The case was docketed in this Court to the August 2022 term and submitted for a decision on the briefs. responsibility or feel remorse for his crimes because he did not plead
¶13guilty; (3) the trial court abused its discretion by denying Taylor’s
¶14motion for a mistrial after a defense witness opined on the legal
¶15definition of aggravated battery; (4) Taylor received ineffective
¶16assistance of counsel because his lawyer did not investigate and
¶17present an insanity defense; and (5) Taylor received ineffective
¶18assistance of counsel because his lawyer failed to introduce
¶19mitigation evidence based on Taylor’s mental health.
¶20 We conclude that the trial court did not plainly err by excluding
¶21evidence about Taylor’s mental health because Taylor affirmatively
¶22waived the argument he now raises on appeal about mental health
¶23evidence being excluded at trial, and that the trial court did not
¶24abuse its discretion by denying Taylor’s motion for a mistrial
¶25because the witness’s testimony was based on personal knowledge
¶26and because lay witnesses are allowed to testify about an “ultimate
¶27issue” in a case. With respect to Taylor’s claims of ineffective
¶28assistance of counsel, we conclude that trial counsel’s investigation
¶29into Taylor’s mental health and his decision not to raise an insanity
¶30 2 defense were not constitutionally deficient; that aspects of counsel’s
¶31mitigation strategy were not constitutionally deficient; and that
¶32certain other aspects of trial counsel’s mitigation strategy did not
¶33prejudice Taylor. Finally, we conclude that Taylor has not met his
¶34burden to show that the trial court penalized him for exercising his
¶35right to trial. We therefore affirm Taylor’s convictions and
¶36sentences.
¶37 1. (a) The evidence presented at trial showed the following. On
¶38August 3, 2011, Taylor was living at the Hale Foundation, a “sober
¶39living community for men,” and was in his first 30 days at the
¶40Foundation—a period of time when residents have most of their
¶41days scheduled for them.
¶42 That morning, Roberts and Eric Fairfax—who had been living
¶43at the Foundation longer than 30 days—were sitting behind a house
¶44in the Foundation parking lot. Roberts and Fairfax noticed that
¶45Taylor was walking around the lot instead of attending a required
¶46meeting. Roberts, who knew Taylor before their time at the
¶47Foundation, asked Taylor why he was not in a meeting. According
¶48 3 to Fairfax, Taylor’s response was something to the effect of he “didn’t
¶49feel like being there, didn’t want to be there[,] and didn’t need it.”
¶50Taylor then approached Roberts and Fairfax. Although Roberts and
¶51Fairfax provided conflicting testimony about whether Roberts asked
¶52another question or said nothing else, they both stated that once
¶53Taylor reached Roberts and Fairfax, Taylor punched Roberts in the
¶54face once, knocking him unconscious. Fairfax testified that Taylor
¶55then “backed away for a second.” Fairfax had “never seen anybody
¶56get hit that hard [his] entire life;” “the first hit . . . was so hard and
¶57so fast that [Fairfax] questioned whether it had actually happened.”
¶58Taylor “hit [Roberts] four more times.”
¶59 Fairfax intervened after Taylor hit Roberts for a fifth time.
¶60Fairfax asked Taylor to stop hitting Roberts and to not hit him.
¶61Taylor responded, “[Fairfax], I’m not going to hit you,” and then,
¶62according to Fairfax, “seemed calm.” Roberts and Fairfax testified
¶63that neither had any issues with Taylor leading up to the attack.
¶64 Fairfax called the police and Deputy Chris Hill responded to
¶65the scene. Roberts and Fairfax later testified that they did not speak
¶66 4 to the police that day, but Deputy Hill testified that he spoke with
¶67Roberts and that once he arrived, someone—he “believe[d] it was
¶68[Roberts]”—told him that Taylor “punched [Roberts] in the face for
¶69no reason.” Deputy Hill, who saw that Roberts had a scratch on his
¶70forehead that had been bleeding, did not “speak to any medical
¶71personnel at the scene,” so he was “not aware of the full extent of
¶72[Roberts’s] injuries.”
¶73 Deputy Hill then “turn[ed his] attention” to Taylor. While still
¶74at the Foundation, Taylor admitted to Deputy Hill that he hit
¶75Roberts. When Deputy Hill asked Taylor why, Taylor responded
¶76that he did it “because he felt like it.” Taylor also told Deputy Hill
¶77that he drank alcohol the night before but that he had not consumed
¶78alcohol or drugs that day. Deputy Hill later testified that Taylor
¶79seemed “in control of his faculties” and that he did not smell alcohol
¶80on Taylor. When Deputy Hill transported Taylor to jail, Taylor did
¶81not “give [Deputy Hill] any trouble” or “appear to be agitated . . . ,
¶82angry or upset[.]”
¶83 5 Ponyetta Odums, an employee in the Richmond County
¶84Sheriff’s department, filled out a medical intake form for Taylor
¶85while booking him at the jail. Odums later testified that Taylor did
¶86not appear to be angry or intoxicated, but that Taylor told her that
¶87he had been drinking at some point recently.
¶88 Odums booked Taylor on a disorderly-conduct charge. 2 Taylor
¶89was placed in a holding cell with five other people, including Earl
¶90Bolar, a homeless man who had been charged with criminal
¶91trespassing. Odums also booked Bolar, whom she described as
¶92appearing “very jolly.” She further testified that Bolar was “just
¶93going to go asleep” once he got in the holding cell and that “[h]e went
¶94inside and laid down.”
¶95 After Taylor and Bolar were in the cell together for some time,
¶96jail employee Maria Hurlburt let one of the prisoners out of the
¶97holding cell to make a phone call and then escorted him back to the
¶98 2 The State’s charging decision was made after Deputy Hill saw only a “small mark” on Roberts’s head. After the State learned of “the extent of [Roberts’s] facial fractures and surgery he would need,” it upgraded Taylor’s charge to aggravated battery. 6 cell. Around 15 to 20 minutes later, Hurlburt and Odums were
¶99walking past that holding cell when they looked inside and saw
¶100Bolar on the floor. He was “fighting to catch his breath,” with blood
¶101covering his nose and mouth. He could not speak and was “jerking
¶102his head” with “blood just running out” and had “defecated on
¶103himself.”
¶104 When Odums asked the inmates who attacked Bolar, Taylor
¶105responded, “I did it.” When asked why, he responded, “because I felt
¶106like it.” Bolar was taken to the hospital and placed on life support.
¶107He died two weeks later.
¶108 Taylor was ultimately charged with malice murder and felony
¶109murder for attacking and killing Bolar and aggravated battery for
¶110attacking Roberts.
¶111 (b) Before trial, Taylor’s pre-trial counsel considered raising
¶112an insanity defense on behalf of Taylor. To that end, pre-trial
¶113counsel sought and obtained two court-ordered evaluations in which
¶114a psychologist offered her opinion on Taylor’s competency to stand
¶115trial and his criminal responsibility at the time of the alleged crimes.
¶116 7 The psychologist’s first evaluation (and resulting report) focused on
¶117Taylor’s competency to stand trial because, as the report reflects,
¶118Taylor initially “declined to have his mental state at the time of the
¶119alleged offenses assessed.” But, at Taylor’s request, the psychologist
¶120later completed a second evaluation and report addressing Taylor’s
¶121criminal responsibility. As explained more below in Division 5, the
¶122resulting reports recounted Taylor’s past struggles with substance
¶123abuse and mental health, but ultimately concluded that Taylor was
¶124competent to stand trial and was not insane when he allegedly
¶125attacked Roberts and Bolar. The second report also contained
¶126Taylor’s account of how he attacked Bolar after his cellmates made
¶127“racist comments” and left Taylor with the impression that “they
¶128were all going to jump” him. Taylor’s trial counsel decided against
¶129asserting an insanity defense, and trial counsel did not seek to admit
¶130the reports into evidence.
¶131 Even so, Taylor’s trial counsel mentioned Taylor’s mental
¶132health several times outside the presence of the jury. For example,
¶133the transcript shows that trial counsel remarked how “the
¶134 8 evaluations” stated that Taylor might have “delusional thinking . . .
¶135induced by probably substance abuse” but it did not rise “to the level
¶136of an insanity defense.” Later, when Taylor asked during trial why
¶137his mental health was not being discussed before the jury, trial
¶138counsel remarked that he had “not seen anything” indicating that
¶139Taylor had “a defense based on mental health.” Likewise, the trial
¶140court commented that a diagnosis such as bipolar disorder or
¶141depression was “not equivalent or equal to” the defense of “not guilty
¶142by reason of insanity and/or guilty but mentally ill.” The trial court
¶143also expressed its understanding that Taylor had undergone
¶144“forensic . . . or mental health evaluations . . . which did not support”
¶145raising a mental health defense. To that end, the trial court noted
¶146that it wanted to be “clear for the record” that Taylor’s mental health
¶147had “been investigated by [his] attorney.” Taylor’s trial counsel
¶148responded that “[t]he most the evaluation tells us is that Mr. Taylor
¶149was probably operating from a paranoid perspective and that would
¶150have been induced by his substance abuse” when he allegedly
¶151 9 committed the crimes, to which the court responded that “voluntary
¶152intoxication of whatever sort is not a defense.”
¶153 (c) Before trial, the State offered Taylor a plea bargain in
¶154which Taylor would be sentenced to life with the possibility of parole
¶155for Bolar’s murder and a concurrent sentence of an unknown time
¶156for committing aggravated battery against Roberts. Taylor did not
¶157accept that offer and elected to go to trial instead. At trial, the four
¶158inmates who had been in the holding cell with Taylor and Bolar
¶159testified about the attack on Bolar. They each testified that when
¶160Taylor was placed in the cell, Bolar was there and already sleeping.
¶161In one inmate’s words, Taylor walked up to Bolar sometime later
¶162and “just started beating” him and then “kicking . . . [him] in the
¶163face.” Each of the four inmates testified that Bolar was sleeping
¶164when Taylor attacked him. Three inmates testified that no one in
¶165the cell talked to Taylor and that Taylor did not talk to any of them
¶166before the attack. The fourth testified that he never spoke to Taylor
¶167and that Taylor and Bolar never spoke to each other. All four
¶168testified that Taylor attacked Bolar for no apparent reason. The
¶169 10 attack was captured by a surveillance camera, and a video recording
¶170of it was played for the jury.
¶171 The medical examiner who performed Bolar’s autopsy, Dr.
¶172Daniel Brown, determined that Bolar’s cause of death was homicide
¶173from blunt-force trauma. Taylor did not present any witnesses. His
¶174trial counsel asked for and obtained jury instructions on the lesser-
¶175included offenses of voluntary and involuntary manslaughter on the
¶176malice and felony-murder charges and battery on the aggravated
¶177battery charge. Taylor was found guilty of all counts: malice
¶178murder, felony murder, and aggravated battery.
¶179 (d) Taylor’s mother, father, and pastor spoke briefly at
¶180sentencing. So did Bolar’s mother, sister, and daughter. Taylor also
¶181spoke at sentencing, saying: “I just want to say I’m sorry. But I also
¶182want to say I’m sorry for taking an innocent man’s life.” The trial
¶183court said that it was “clear from the evidence” that the crimes
¶184Taylor was convicted of resulted from Taylor’s history of substance
¶185abuse, and that the court was “convinced that had there not been
¶186substance abuse involved in this case,” the crimes Taylor was
¶187 11 convicted of never would have occurred. It continued: “Mr. Taylor,
¶188you did not accept responsibility for your actions. The State prior to
¶189trial in this case offered you an opportunity to accept responsibility,
¶190and offered you a sentence of life with the possibility of parole.”
¶191After Taylor briefly responded, the trial court said, “[y]ou declined
¶192to accept that and you declined to accept or admit any responsibility
¶193for this action.”
¶194 Trial counsel reminded the court that Taylor had undergone
¶195two mental health evaluations and that Taylor experienced
¶196“paranoid thinking.” Trial counsel asserted that Taylor “honestly
¶197believed” that there was a “threat” in the cell with him and that
¶198Taylor “had to defend himself” when he killed Bolar. Trial counsel
¶199then asked that the court not “punish” Taylor “for exercising his
¶200right to trial,” to which the court responded: “the sentence is not
¶201intended to punish you for exercising your right to trial. It does
¶202reflect the fact that you did not accept any responsibility or show
¶203any remorse for your actions in causing the death of an individual.”
¶204 12 Taylor responded that he had “accepted responsibility.” He
¶205said that he told his “attorney several times that [he] would accept
¶206[a sentence for] manslaughter because that is what [he] felt like” he
¶207committed; he “did not know that [his] hands would cause that kind
¶208of damage.” He said he was “sorry for what [he had] done,” and that
¶209he “accepted[ed] responsibility.” The trial court said that it
¶210“underst[oo]d,” but that the facts necessary to support manslaughter
¶211“were not present in this case at all.” Taylor did not proffer a
¶212mental-health expert at sentencing. The court then sentenced
¶213Taylor to life in prison without parole for Bolar’s murder and 20
¶214years consecutive for aggravated battery. The reason the court gave
¶215for its sentence was that Taylor failed to “accept any responsibility
¶216or show any remorse” for his actions.
¶217 2. Taylor contends that the trial court abused its discretion
¶218by granting the State’s motion to exclude from evidence portions of
¶219the medical intake form Taylor filled out at booking that pertained
¶220to his mental health. On appeal, Taylor argues that portions of the
¶221medical intake form were admissible as lay evidence of a “mental
¶222 13 health defense.” But Taylor affirmatively waived any “mental
¶223health defense” at trial, so this enumeration fails.
¶224 (a) At trial, Taylor sought to introduce portions of the medical
¶225intake form that he filled out while being booked in jail. The form
¶226included 27 yes-or-no questions, and Taylor wanted to introduce his
¶227answers to questions pertaining to his mental health history. In
¶228particular, he had provided affirmative responses to question 11,
¶229which asked whether he had “any Mental Health problems,” and
¶230question 16, which asked whether he had “ever tried to hurt or kill”
¶231himself.
¶232 The prosecutor made an oral motion in limine to prevent the
¶233answers from being admitted, contending that all of Taylor’s
¶234answers from the form should be excluded as inadmissible hearsay
¶235and that, hearsay aside, Taylor’s answers suggesting that he “may
¶236have had mental health problems” should be excluded as irrelevant
¶237and prejudicial because Taylor did not file a notice of asserting a
¶238mental health defense. The trial court explained that it “d[id]n’t
¶239think” that the mental health questions “should come in to
¶240 14 evidence.” Taylor’s trial counsel responded that “[t]his is not a given
¶241case where we’re raising a mental health defense of any kind,” but
¶242contended the medical intake form should be admitted to help the
¶243jury understand Taylor’s “state of mind at the time he was arrested
¶244and placed” in the holding cell. The trial court then granted the
¶245motion to exclude and ruled that it would not admit into evidence
¶246Taylor’s answers to any of the questions on the intake form that
¶247related to Taylor’s mental health.
¶248 (b) Taylor has not preserved this enumeration of error for
¶249ordinary appellate review. That is because Taylor contends on
¶250appeal that the trial court should have admitted the answers to the
¶251mental health questions on his medical intake form on the theory
¶252that they were lay evidence that he “heard” voices that were in
¶253reality “coming from his head,” thus supporting a “mental health
¶254defense” that would have enabled the jury to “choose a lesser
¶255included charge on the verdict form.” But at trial, Taylor did not
¶256advance that theory in seeking to admit those responses; to the
¶257 15 contrary, he sought their admission only to show his state of mind
¶258when “he was arrested and placed into th[e] holding cell.”
¶259 Nonetheless, plain-error review applies when, on appeal, a
¶260defendant argues that evidence was admissible for a purpose other
¶261than the one for which he sought to admit the evidence at trial, as
¶262Taylor does here. See Williams v. State, 302 Ga. 147, 150-151 (805
¶263SE2d 873) (2017) (applying plain-error review when on appeal the
¶264defendant argued that the court should have admitted a
¶265toxicologist’s testimony about “drugs found in [the victim’s] blood” in
¶266support of the defense theory that the drugs made the victim more
¶267likely to die by “asphyxiation by choking,” when at trial the
¶268defendant argued only that the drugs “would have made [the victim]
¶269both ‘clumsy’ and ‘drowsy’ and ‘explosive, hyperactive’”).
¶270 The plain-error standard has four prongs.
¶271 First, there must be an error or defect—some sort of “[d]eviation from a legal rule”—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary
¶272 16 case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error— discretion which ought to be exercised only if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’”
¶273Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016) (quoting State
¶274v. Kelly, 290 Ga. 29, 33 (718 SE2d 232) (2011)).
¶275 Here, Taylor does not satisfy even the first prong of plain-error
¶276review because he affirmatively waived using the medical intake
¶277form for the purpose of supporting of a “mental health defense.” To
¶278that end, the record shows that while attempting to admit the
¶279medical intake form into evidence, Taylor’s trial counsel asserted
¶280that Taylor was not “raising a mental health defense of any kind,”
¶281affirmatively waiving use of the medical intake form for that
¶282purpose. See Dukes v. State, 311 Ga. 561, 569 (2021) (858 SE2d 510)
¶283(holding that the defendant affirmatively waived the argument that
¶284a witness should have been permitted to further testify when, in
¶285response to the State’s objection that the defendant had not laid a
¶286proper foundation, the defendant said, “That’s all I’m going to ask
¶287 17 him” and that the witness was “not qualified” to continue testifying);
¶288Davis v. State, 311 Ga. 225, 230-231 (857 SE2d 207) (2021) (holding
¶289that the defendant affirmatively waived the argument that a
¶290witness was not “unavailable” under the hearsay rules when the
¶291defendant told the judge that the State’s argument for why the
¶292witness was “unavailable” was “right” and asked that all of the
¶293witness’s testimony come in, not only the parts that helped the
¶294State). Because Taylor has not shown that the trial court plainly
¶295erred, his claim fails.
¶296 3. Taylor contends that the trial court erred by using his
¶297decision to forgo a plea deal as a consideration during sentencing.
¶298Taylor does not rely on a “presumption of vindictiveness” in
¶299advancing his claim, and instead points to what he deems the trial
¶300court’s “improper consideration of the rejection of a plea deal.”
¶301Because Taylor has failed to meet his burden in showing that the
¶302trial court sentenced him with an impermissible motive such that it
¶303penalized Taylor for exercising his constitutional right to a trial, we
¶304affirm.
¶305 18 (a) As noted above, the State offered Taylor a plea deal before
¶306trial. It offered Taylor a sentence of life with the possibility of parole
¶307for Bolar’s murder (as opposed to the only other sentence available
¶308here for a conviction of malice murder, life without parole) and a
¶309concurrent sentence of an unknown time (as opposed to up to 20
¶310years) for committing aggravated battery against Roberts, if Taylor
¶311agreed to plead guilty to Bolar’s murder and to the aggravated
¶312battery of Roberts. Taylor did not accept that offer and instead
¶313elected to go to trial. He was convicted on both counts. The trial
¶314court then imposed the maximum available sentence: life without
¶315parole with 20 years in prison consecutive.
¶316 At sentencing, Taylor’s pastor, his mother, and his father
¶317testified on his behalf. Taylor then offered remarks and had the
¶318following exchange with the trial court:
¶319 THE DEFENDANT: I just want to say I’m sorry. But I also want to say I’m sorry for taking an innocent man’s life.
¶320 THE COURT: It is clear from the evidence in this case that this was a result of substance abuse of a long nature. Mr. Taylor, you did not accept responsibility for your
¶321 19 actions. The State prior to trial in this case offered you an opportunity to accept responsibility, and offered you a sentence of life with the possibility of parole.
¶322 THE DEFENDANT: Yes, ma’am.
¶323 THE COURT: You declined to accept that and you declined to accept or admit any responsibility for this action. And you come from a good and loving family.
¶324Taylor’s counsel, after referencing Taylor’s mental health and
¶325substance abuse, asked that the trial court not “punish Mr. Taylor
¶326for exercising his right to trial” and stated that Taylor “felt in his
¶327heart that he was not a murderer.” The court responded that “the
¶328sentence is not intended to punish you for exercising your right to
¶329trial. It does reflect the fact that you did not accept any
¶330responsibility or show any remorse for your actions in causing the
¶331death of an individual.” Taylor then asked to speak and stated:
¶332 Judge . . . I have accepted responsibility for it. I told my attorney several times that I would accept manslaughter because that is what I felt like I have done. I did take manslaughter. Okay. But I had no intent to -- I did not understand the severity, I did not understand Mr. Roberts, and I didn’t know that he was as bad as he was. I did not know that my hands would cause that kind of damage. I had no idea. And I’m sorry for what I’ve done. I do accept responsibility. That’s all.
¶333 20 The court responded that the necessary “facts [for manslaughter]
¶334were not present in this case at all.” It then sentenced Taylor.
¶335 (b) In reviewing Taylor’s claim, we “presume the trial court
¶336knew and applied” the law when sentencing Taylor “‘absent some
¶337indication in the record suggesting otherwise.’” Holmes v. State, 311
¶338Ga. 698, 706 (859 SE2d 475) (2021) (quoting State v. Abbott, 309 Ga.
¶339715, 719 (849 SE2d 105) (2020)). We also keep in mind that,
¶340although not without limits, sentencing judges generally are
¶341afforded wide discretion. See State v. Riggs, 301 Ga. 63, 68 (799
¶342SE2d 770) (2017) (“[T]rial courts generally have the discretion to
¶343fashion sentences that fit the crimes for which the defendant is
¶344convicted, so long as the sentences fall within the statutory
¶345ranges.”). One limitation on that discretion is the constitutional
¶346prohibition of sentences that punish defendants for exercising their
¶347constitutional rights, such as the right to trial. See Bordenkircher
¶348v. Hayes, 434 U.S. 357, 363 (98 SCt 663, 54 LE2d 604) (1978) (“To
¶349punish a person because he has done what the law plainly allows
¶350 21 him to do is a due process violation of the most basic sort, and for an
¶351agent of the State to pursue a course of action whose objective is to
¶352penalize a person’s reliance on his legal rights is ‘patently
¶353unconstitutional.’”) (citations and punctuation omitted); Corbitt v.
¶354New Jersey, 439 U.S. 212, 221-225 (99 SCt 492, 58 LE2d 466) (1978)
¶355(applying Bordenkircher to a statutory sentencing framework). See
¶356also North Carolina v. Pearce, 395 U.S. 711, 725 (89 SCt 2072, 23
¶357LE2d 656) (1969) (“Due process of law, then, requires that
¶358vindictiveness against a defendant for having successfully attacked
¶359his first conviction must play no part in the sentence he receives
¶360after a new trial.”), overruled in part by Alabama v. Smith, 490 U.S.
¶361794 (109 SCt 2201, 104 LE2d 865) (1989). But see Bordenkircher,
¶362434 U.S. at 363 (“[I]n the ‘give-and-take’ of plea bargaining, there is
¶363no such element of punishment or retaliation so long as the accused
¶364is free to accept or reject the prosecution’s offer.”).
¶365 In contending that the trial court had an impermissible motive
¶366in sentencing, Taylor does not rely on the presumption of
¶367vindictiveness established in Pearce, 395 U.S. at 726. He does not
¶368 22 cite any cases showing what burden he bears to prevail on his claim,
¶369so we presume that he must “show actual vindictiveness,” see Texas
¶370v. McCullough, 475 U.S. 134, 138 (106 SCt 976, 89 LEd 2d 104)
¶371(1986), especially given that Taylor does not contend that any other
¶372standard applies. See also, e.g., Alabama, 490 U.S. at 799-800
¶373(defendant bears the burden when alleging actual vindictiveness in
¶374resentencing). Cf. United States v. Dvorin, 817 F.3d 438, 454 (5th
¶375Cir. 2016) (defendant bears the burden by a preponderance of the
¶376evidence when alleging actual prosecutorial vindictiveness).
¶377 In Taylor’s view, he has shown that the trial court punished
¶378him for choosing to exercise his right to trial because the proximity
¶379of the court’s statement that Taylor “declined to accept” the plea
¶380with its finding that Taylor “declined to accept or admit any
¶381responsibility” necessarily implies that the court considered Taylor
¶382rejecting the plea deal in assessing whether he accepted
¶383responsibility. He contends that inference is particularly strong
¶384because the record—which shows Taylor stating three times during
¶385sentencing that he was sorry and also stating that he “accepted
¶386 23 responsibility”—contradicts the trial court’s finding that Taylor “did
¶387not accept responsibility” and “did not show any remorse.”
¶388 We are not so sure. Although the trial court’s reference to
¶389Taylor declining the State’s plea offer—particularly in such close
¶390proximity to its finding that Taylor “declined to accept or admit any
¶391responsibility”—could be viewed as implying that the trial court
¶392equated Taylor rejecting a plea (and then exercising his right to
¶393trial) with a lack of acceptance of responsibility and remorse, we
¶394cannot say that is definitively so. Indeed, at most Taylor has shown
¶395that the record is ambiguous with respect to the court’s motive in
¶396sentencing Taylor. We reach that conclusion in large part because
¶397after making the potentially problematic statements referenced
¶398above, the trial court expressly stated that “the sentence [wa]s not
¶399intended to punish [Taylor] for exercising [his] right to trial,” and
¶400that the sentence was based on the court’s finding that Taylor “did
¶401not accept any responsibility or show any remorse.” And the record
¶402could be viewed as supporting that conclusion: the trial court was
¶403authorized to evaluate Taylor’s credibility and the genuineness of
¶404 24 his remorse, see Isaacs v. State, 259 Ga. 717, 723 (386 SE2d 316)
¶405(1989) (“‘[S]incere contrition’” “is a permissible area of inquiry
¶406during sentencing.”), and it was authorized to discredit Taylor’s
¶407statement that he accepted responsibility for the crimes—especially
¶408given that he immediately followed one of his apologies by saying “I
¶409would accept manslaughter” (not the murder charge for which he
¶410was convicted) “because that is what I felt like I have done”—a
¶411comment that the trial court could have viewed as undermining the
¶412genuineness of any or all of Taylor’s apologetic statements.
¶413 To be sure, if the trial court exercised its discretion to give
¶414Taylor the maximum available sentence because it did not, in fact,
¶415believe his multiple apologies were genuine, or because his professed
¶416acceptance of responsibility was not credible, the better course
¶417under these particular circumstances would have been for the trial
¶418court to make those findings on the record and make no suggestion—
¶419implicit or explicit, cf. Winfrey v. State, 304 Ga. 94, 98 (816 SE2d
¶420613) (2018)—that the exercise of Taylor’s constitutional right to trial
¶421motivated the trial court’s sentence. But viewing the record as a
¶422 25 whole, and in light of the presumption that the trial court knew and
¶423applied the law, see Holmes, 311 Ga. at 706, we cannot say that
¶424Taylor has carried his burden of showing that the trial court
¶425penalized him for exercising his right to trial. We therefore affirm
¶426his sentence.
¶427 4. Taylor contends that the trial court abused its discretion
¶428in denying Taylor’s motion for a mistrial after one of the State’s lay
¶429witnesses provided improper testimony by testifying that “the law
¶430dictate[d]” that aggravated battery was the appropriate charge for
¶431Taylor attacking Roberts. For the reasons that follow, this claim
¶432fails.
¶433 (a) Taylor was originally charged with disorderly conduct for
¶434attacking Roberts. However, once the State was informed that
¶435Roberts’s injuries were more severe than initially known, the State
¶436filed additional charges against Taylor. While examining an
¶437investigator at trial, the prosecutor asked why Taylor’s charge was
¶438upgraded from disorderly conduct to aggravated battery. The
¶439investigator responded: “[A]fter meeting with the victim and
¶440 26 viewing his injuries and speaking with his doctors on the extent of
¶441his facial fractures and surgery he would need, the law dictates that
¶442that was the appropriate charge.” Taylor moved for a mistrial,
¶443arguing that the answer “invade[d] the province of the jury” because
¶444it is the jury’s role to determine the “appropriate charge.” The trial
¶445court denied Taylor’s motion. Later, in denying Taylor’s motion for
¶446new trial on the same issue, the trial court ruled that the
¶447investigator’s testimony was “most fairly seen as an attempt to
¶448explain his own conduct in upgrading the charge . . . rather than an
¶449opinion on the ultimate issue of whether [Taylor] committed the
¶450offense.” In the alternative, the trial court ruled that the
¶451investigator’s “remark was not barred even if it touched on the
¶452ultimate issue in the case” under OCGA § 24-7-704 (a).
¶453 (b) “Under Georgia’s Evidence Code, a lay witness ‘may not
¶454testify to a matter unless evidence is introduced sufficient to support
¶455a finding that the witness has personal knowledge of such matter.
¶456Evidence to prove personal knowledge may, but need not, consist of
¶457the witness’s own testimony.’” Draughn v. State, 311 Ga. 378, 385
¶458 27 (858 SE2d 8) (2021) (quoting OCGA § 24-6-602 (“Rule 602”)) (holding
¶459that eyewitness testimony identifying the defendants in a
¶460surveillance video was based on personal knowledge because the
¶461witness identified the defendants based on his “recollection of the
¶462stabbing”). In addition, except for certain expert testimony,
¶463“testimony in the form of an opinion or inference otherwise
¶464admissible shall not be objectionable because it embraces an
¶465ultimate issue to be decided by the trier of fact.” See OCGA § 24-7-
¶466704 (“Rule 704”). “This Court has repeatedly held . . . that the
¶467current Evidence Code . . . abolished the prohibition on lay opinion
¶468testimony concerning the ultimate issue in a case.” Fisher v. State,
¶469309 Ga. 814, 821 (848 SE2d 434) (2020) (cleaned up).
¶470 To the extent the trial court concluded that the investigator’s
¶471testimony was proper lay testimony because it was based on
¶472personal knowledge about why Taylor’s charges were upgraded, see
¶473Draughn, 311 Ga. at 384-385, we see no abuse of discretion in the
¶474trial court denying Taylor’s motion for mistrial on that basis. And
¶475even assuming, without deciding, that the investigator’s testimony
¶476 28 touched upon the ultimate issue in this case, see Pyatt v. State, 298
¶477Ga. 742, 754 (784 SE2d 759) (2016) (assuming without deciding that
¶478a law enforcement officer’s testimony touched on the ultimate issue
¶479when he testified among other things that “In my opinion and in
¶480what I consider the law[,] that is aggravated assault”), we likewise
¶481see no abuse of discretion in the trial court’s denial of the motion on
¶482that basis. Thornton v. State, 307 Ga. 121, 127-128 (834 SE2d 814)
¶483(2019) (concluding that a lead detective’s testimony that only one
¶484suspect could have committed part of the crime was lay testimony
¶485and thus not barred by Rule 704). See also Fisher, 309 Ga. at 820-
¶486821 (noting that Rule 704 would not have barred a lead detective’s
¶487testimony about whether someone was an accomplice to the
¶488defendant’s crime even if it touched upon the case’s ultimate issue
¶489because that rule does not bar lay opinion testimony).
¶490 5. Taylor contends that his trial counsel provided ineffective
¶491assistance under the Sixth Amendment to the United States
¶492Constitution because trial counsel failed to investigate and make
¶493arguments related to Taylor’s mental health at both the guilt and
¶494 29 sentencing phases of his trial. Some additional background is
¶495necessary to review Taylor’s claim. To begin, because Taylor was
¶496indigent and unable to pay for expenses related to his defense,
¶497Taylor’s pre-trial counsel (who did not participate at trial) filed with
¶498the trial court a petition for a court-ordered psychiatric evaluation
¶499to be performed on Taylor. Before trial, the trial court ordered a
¶500psychiatric evaluation to determine whether Taylor was (1)
¶501“mentally competent at the time” of the alleged crimes and (2)
¶502“competent to counsel with his attorney and [] competent to stand
¶503trial.” The trial court also ordered that the psychiatrist’s findings
¶504be memorialized in a report. Pursuant to the court order, Dr.
¶505Elizabeth Donegan, a licensed psychologist 3 employed by the
¶506Georgia Department of Behavioral Health & Developmental
¶507Disabilities, performed two evaluations and produced two reports.
¶508A March 2012 report addressed whether Taylor was competent to
¶509stand trial, and a February 2013 report addressed Taylor’s mental
¶510 3 On appeal, Taylor does not enumerate any error related to Dr. Donegan being a psychologist and not a psychiatrist. 30 state at the time of the alleged crimes against Roberts and Bolar.
¶511Dr. Donegan explained in the second report that a second evaluation
¶512was needed to evaluate Taylor’s mental state when he attacked
¶513Roberts and Bolar because, during the first evaluation, “Taylor
¶514declined to have his mental state at the time of the alleged offenses
¶515assessed.” Ultimately, neither the March 2012 report nor the
¶516February 2013 report were introduced into evidence at trial, but
¶517those reports are at the center of Taylor’s claims of ineffective
¶518assistance of counsel and were part of the record at the motion-for-
¶519new-trial stage.
¶520 March 2012 Report. In the first report, Dr. Donegan
¶521determined that Taylor knew the charges he faced, knew he could
¶522go to prison if convicted, and “demonstrated awareness of the
¶523judicial process.” According to Dr. Donegan, Taylor showed the
¶524ability to exercise behavior that would be “appropriate for the
¶525courtroom,” and he “was able to provide relevant information in
¶526response to questions.” Dr. Donegan concluded that “Taylor
¶527appeared to understand the nature and object of the proceedings, to
¶528 31 comprehend his situation in reference to the proceedings, and to
¶529have the capacity to render his attorney assistance in providing a
¶530proper defense.”
¶531 February 2013 Report. As explained more below, Dr. Donegan
¶532concluded in her second report that when he attacked Roberts and
¶533Bolar, Taylor did not appear to be under a “delusional compulsion
¶534that overmastered his will to resist committing the offenses” or
¶535“unable (as a result of mental illness or impairment) to distinguish
¶536basic concepts of right and wrong.” Before reaching this conclusion,
¶537Dr. Donegan conducted two “[c]linical forensic interview[s]” with
¶538Taylor, one in January 2012 and the other in January 2013, and
¶539examined court documents from Taylor’s arrest, medical records
¶540from while Taylor was in jail, and medical records from three of
¶541Taylor’s earlier hospitalizations.
¶542 Dr. Donegan noted that Taylor had a history of substance
¶543abuse and mental-health-related issues. Taylor’s substance abuse
¶544mainly involved the use of alcohol, marijuana, and cocaine. His
¶545mental health history included, among other things, two
¶546 32 hospitalizations for harming himself and diagnoses of Polysubstance
¶547Dependence, Intermittent Explosive Disorder, Antisocial
¶548Personality Disorder, Substance-Induced Mood Disorder,
¶549Substance-Induced Psychosis, and Substance-Induced Psychotic
¶550Disorder.
¶551 The report recounted Taylor’s accounts of the beatings of
¶552Roberts and Bolar. Taylor said that he was doing cocaine and
¶553drinking with Roberts the morning of the crimes, and that he had
¶554experienced “some paranoia while in the Hale House,” including
¶555thinking that “everyone” there was “out to hurt” him, and that he
¶556was “kinda high, but . . . too stressed out and too spooked to be
¶557enjoying anything.” He also “thought [the other inmates] were all
¶558going to jump” him. Taylor said that Bolar called him a “cracker”
¶559after the other inmates in the cell had each already “said something
¶560racist” to Taylor. Taylor told Bolar not to call him a “cracker” again.
¶561When Bolar did, Taylor “hit him and kicked him and hit him and
¶562kicked him.” The report then noted that, “in clarification,” Taylor
¶563said he was not sure whether the inmates were actually talking to
¶564 33 him or “it was voices [he] was hearing,” but that he “denied
¶565experiencing hallucinations in his history.” Taylor said that “he did
¶566not think that” he would have attacked Roberts and Bolar “if he had
¶567not been using [drugs] that day.”
¶568 Dr. Donegan concluded:
¶569 While Mr. Taylor appears to have some mental health treatment history; largely, it appears, in connection with substance abuse; and a tendency for interpreting people’s actions and statements in a paranoid or derogatory manner was reported during that period surrounding the alleged offenses, Mr. Taylor did not express overtly delusional beliefs directly related to the alleged offenses and other available evidence for review surrounding the times of the alleged offenses did not note Mr. Taylor to have made seemingly delusional statements in regard to the alleged offenses and his behaviors or suggest he experienced delusional thinking during those times. Behaviors surrounding the alleged offenses do not appear to have resulted from a delusional compulsion that overmastered his will to resist committing the offenses. Available information from the period surrounding the alleged offenses also does not suggest Mr. Taylor experienced mental health symptoms during the time of the alleged offenses to a degree of severity that his mental capacity was so impaired that he was unable (as a result of mental illness or impairment) to distinguish basic concepts of right and wrong during those times. Mr. Taylor is though noted to have been abusing alcohol and cocaine in close proximity to the alleged offenses, the use of which, it appears reasonable
¶570 34 to presume, would likely have made him more prone to impulsive behavior and poor judgment and, based on his history, irritability and a paranoid perspective.
¶571 Taylor’s Motion for New Trial. At the hearing on Taylor’s
¶572motion for new trial, trial counsel testified about his trial strategy.
¶573He explained that, although he did not personally request that
¶574mental health evaluations be conducted for Taylor, a lawyer who
¶575represented Taylor before trial did so and that Dr. Donegan
¶576eventually conducted them. Trial counsel was “fairly confident” that
¶577he reviewed those evaluations around the time of Taylor’s trial.
¶578After Taylor’s motion-for-new-trial counsel attempted to impeach
¶579Taylor’s trial counsel by asking whether trial counsel told another
¶580lawyer in 2016 that he did not read Dr. Donegan’s reports4, trial
¶581counsel testified “[t]hat would not be consistent with [his] memory”
¶582and clarified that he read Dr. Donegan’s evaluations and did not
¶583raise an insanity defense because he understood them to “say that
¶584 4 Taylor presented testimony from a lawyer who worked on Taylor’s case after he was convicted. She testified that she ran into Taylor’s trial counsel in court one day in 2016 and had “a very brief conversation” with him in which she asked whether he had been “able to read [Dr. Donegan’s] evaluations”; he responded “he had not.” 35 [Taylor] was competent,” although he “recall[ed] some language to
¶585the effect that there was some delusional component to his thinking
¶586processes.” Trial counsel explained that his strategy was requesting
¶587“lesser included offenses” for Taylor instead of pursuing an insanity
¶588defense.
¶589 On cross-examination, the prosecutor elicited testimony from
¶590Taylor’s trial counsel that counsel must have considered an insanity
¶591defense for Taylor because he mentioned on the record before trial
¶592that he was not raising a mental health defense and that Taylor’s
¶593diagnosis of substance-induced psychosis would have created
¶594problems because voluntary intoxication generally is not a defense.
¶595With respect to his representation at the sentencing phase, trial
¶596counsel testified that his decision not to call “doctors or experts
¶597during the mitigation” phase of sentencing was not a “strategic
¶598choice,” and that he “probably should have” done that “in hindsight.”
¶599 Taylor also called a forensic psychologist, Dr. Paganelli, to
¶600testify. Dr. Paganelli evaluated Taylor in 2020, around seven years
¶601after Taylor was convicted for attacking Roberts and Bolar. She
¶602 36 concluded that Taylor was having “paranoid delusions” when he
¶603attacked Roberts and Bolar “that were not directly caused by any
¶604substance or any alcohol.” According to Dr. Paganelli, Taylor’s
¶605mental health issues and events like a car accident, losing his job,
¶606being physically attacked in a previous job, and “split[ting] up” with
¶607his wife—and not exclusively drug use—contributed to his mental
¶608state when he attacked Roberts and Bolar. She concluded that
¶609Taylor was “very likely . . . experiencing psychotic and mood disorder
¶610symptoms alongside his alcohol and drug use in the community” but
¶611that those “were masked by his substance abuse and/or completely
¶612attributed to drugs of abuse, as many substances of abuse
¶613(specifically cocaine) can cause paranoia and other symptoms that
¶614mimic psychosis.” Dr. Paganelli diagnosed Taylor with
¶615“Schizophrenia, Schizoaffective Disorder, and/or Bipolar Disorder.”
¶616However, Dr. Paganelli concluded that “Taylor does not meet the
¶617criteria for a not guilty by reason of insanity plea.”
¶618 The trial court denied Taylor’s claims of ineffective assistance
¶619of counsel, finding that despite trial counsel’s inability to remember
¶620 37 with certainty whether he reviewed Dr. Donegan’s reports, “the
¶621record shows counsel indeed undertook such an evaluation and
¶622affirmatively concluded the evidence did not support” raising an
¶623insanity defense. For example, the trial court pointed out that “trial
¶624counsel’s ability to recall the most favorable details from Dr.
¶625[Donegan’s] findings indicate[s] prior consideration of these
¶626findings.” The trial court also noted that “[d]espite mental health
¶627evaluations conducted both before and after trial, there has been no
¶628evidence produced to support a finding that [Taylor] lacked the
¶629mental capacity to distinguish right from wrong or that he suffered
¶630from a delusional compulsion.” It also highlighted various problems
¶631Taylor would face if he had tried to introduce Dr. Donegan’s report
¶632to support an insanity defense. First, the report would have
¶633highlighted the role of substance abuse in Taylor’s conduct, whereas
¶634the jury otherwise heard minimal evidence about his substance
¶635abuse, thus “inject[ing] the negating dynamic of [Taylor’s] chronic
¶636history of controlled substance addiction.” And the report could
¶637have harmed Taylor’s defense because it might have led the jury to
¶638 38 believe that Taylor’s attack on Bolar was racially motivated. The
¶639trial court held that trial counsel’s decision not to raise an insanity
¶640defense at trial was not constitutionally deficient performance under
¶641Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674)
¶642(1984). It also concluded that Taylor was not prejudiced by any
¶643alleged deficiency related to trial counsel’s performance at
¶644sentencing, reasoning that “[g]iven the Court’s repeated appeal to
¶645the impact of voluntary intoxication, it is unlikely any additional
¶646evidence of Defendant’s mental health history would have had an
¶647impact on the Court’s decision to sentence” and that trial counsel’s
¶648further reference to either the pre-trial or post-trial expert reports
¶649would have been of no benefit to Taylor because both “make clear
¶650the causative dynamics of substance abuse with respect to
¶651Defendant’s aberrant behaviors.”
¶652 (b) To prevail on a claim of ineffective assistance of counsel, a
¶653defendant generally must show that counsel’s performance was
¶654deficient and that the deficient performance resulted in prejudice to
¶655the defendant. Strickland, 466 U.S. at 687; Wesley v. State, 286 Ga.
¶656 39 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a
¶657defendant must demonstrate that his attorney “performed at trial in
¶658an objectively unreasonable way considering all the circumstances
¶659and in the light of prevailing professional norms.” Romer v. State,
¶660293 Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466
¶661U.S. at 687-688. To satisfy the prejudice prong, a defendant must
¶662establish a reasonable probability that, in the absence of counsel’s
¶663deficient performance, the result of the trial would have been
¶664different. See id. at 694. “If an appellant fails to meet his or her
¶665burden of proving either prong of the Strickland test, the reviewing
¶666court does not have to examine the other prong.” Lawrence v. State,
¶667286 Ga. 533, 533-534 (690 SE2d 801) (2010).
¶668 Claims of ineffective assistance of counsel involve mixed
¶669questions of law and fact, and “a trial court’s factual findings made
¶670in the course of deciding an ineffective assistance of counsel claim
¶671will be affirmed by the reviewing court unless clearly erroneous.”
¶672Green v. State, 302 Ga. 816, 818 (809 SE2d 738) (2018) (citation and
¶673punctuation omitted). Conclusions of law based on those facts are
¶674 40 reviewed de novo. See Bright v. State, 292 Ga. 273, 274 (736 SE2d
¶675380) (2013).
¶676 (c) Taylor contends that his trial counsel was ineffective for
¶677failing to investigate and raise a defense of insanity on his behalf.
¶678As part of that claim, Taylor contends that trial counsel should have
¶679read Dr. Donegan’s reports, obtained Taylor’s hospital and jail
¶680records, and obtained and introduced an expert report on Taylor’s
¶681mental health from an “independent psychologist.” Taylor further
¶682contends that his trial counsel should have raised and supported a
¶683defense of insanity by, for example, having Taylor’s mother testify
¶684about Taylor’s mental health and by introducing the medical intake
¶685form Taylor filled out when he was booked into jail.
¶686 “We have explained before that, generally speaking in non-
¶687capital cases, a trial counsel’s ‘decision to forego or curtail’ further
¶688investigation of an accused’s mental health, ‘even when there has
¶689been a previous mental hospitalization, is reasonable when an
¶690expert has determined that the defendant is fit to stand trial or that
¶691he was sane at the time of the offense.’” Sullivan v. State, 308 Ga.
¶692 41 508, 513 (842 SE2d 5) (2020) (quoting Whitus v. State, 287 Ga. 801,
¶693803-804 (700 SE2d 377) (2010)). In Sullivan, for example, this Court
¶694held that trial counsel’s “failure to procure and present to the jury
¶695expert testimony about [the defendant’s] mental health and its effect
¶696on his criminal responsibility” was not constitutionally deficient
¶697when trial counsel “obtained mental evaluations” finding the
¶698defendant competent to stand trial and competent at the time of the
¶699offenses and trial counsel “consulted medical records.” Id. at 512-
¶700514. See also Whitus, 287 Ga. at 803-804 (defendant failed to show
¶701that her trial counsel “unreasonably relied on [an expert’s
¶702psychiatric] evaluation” and thus failed to show that trial counsel
¶703was constitutionally deficient for failing to obtain an additional
¶704evaluation when her trial counsel “testified that he believed the
¶705evaluation was fair and balanced and that he had no reason to
¶706disagree and request additional testing”).
¶707 Here, Taylor has failed to show that trial counsel was deficient
¶708for failing to further investigate the possibility of an insanity
¶709defense. To begin, the trial court concluded at the motion-for-new-
¶710 42 trial stage that Taylor’s trial counsel did read and consider Dr.
¶711Donegan’s reports. Even to the extent there was conflicting evidence
¶712in the record about that point, the trial court was authorized to
¶713credit trial counsel’s testimony (as well as evidence such as counsel’s
¶714references to Dr. Donegan’s reports during trial) over the testimony
¶715of post-conviction counsel. See Stepp-McCommons v. State, 309 Ga.
¶716400, 410 (845 SE2d 643) (2020) (the trial court “‘resolve[s] any
¶717conflicts in the testimony’” at motion-for-new-trial hearing) (citation
¶718omitted). Thus, “this is not a case where trial counsel made no effort
¶719to investigate the potential for a defense based on mental health
¶720issues or relied exclusively upon his own lay evaluation of the
¶721mental health of his client.” See Sullivan, 308 Ga. at 514 (cleaned
¶722up). Moreover, Taylor has not shown that it was objectively
¶723unreasonable for his trial counsel to rely on Dr. Donegan’s two
¶724reports—which she drafted after examining court documents from
¶725Taylor’s arrest, medical records from while Taylor was in jail, and
¶726 43 medical records from three of Taylor’s earlier hospitalizations 5—and
¶727in light of those reports, cease additional investigation into Taylor’s
¶728mental health and decide against raising additional evidence that
¶729could have supported an insanity defense. See Whitus, 287 Ga. at
¶730803-805; Sullivan, 308 Ga. at 513-514.6 Thus, under the
¶731circumstances presented here, Taylor’s trial counsel was not
¶732constitutionally deficient in declining to obtain or introduce evidence
¶733(such as the medical intake form) in support of an insanity defense.
¶734This enumeration therefore fails.
¶735 5Notably, Taylor has not shown how having trial counsel obtain records like the ones Dr. Donegan relied on would have equipped trial counsel to present different, let alone more favorable, arguments about Taylor’s mental health than Dr. Donegan.
¶736 6 To the extent Taylor also contends that his trial counsel was constitutionally deficient because he “did not request from the trial court that an independent psychologist examine Mr. Taylor prior to trial” (emphasis added), his unsupported contention also fails. Indeed, Taylor has not alleged, let alone shown, that Dr. Donegan suffered from any conflict of interest or other deficiency such that she was not “independent,” and we cannot say that trial counsel was constitutionally deficient on this basis. See Whitus, 287 Ga. at 804.
¶737 44 (d) Taylor also raises a claim of ineffective assistance of counsel
¶738related to his trial counsel’s performance in the sentencing phase of
¶739trial. Citing only two Court of Appeals cases in which that court
¶740concluded that the trial counsel involved in those cases did not
¶741provide ineffective assistance 7, Taylor contends that his “trial
¶742counsel erred in failing to seek out mitigation evidence” at
¶743sentencing. He argues that his trial counsel should have done three
¶744things: sought out and introduced expert “mental health or
¶745mitigation” evidence; brought to the court’s attention evidence of
¶746Taylor’s “mental illness already in the record”; and brought to the
¶747trial court’s attention Taylor’s statement contained in Dr. Donegan’s
¶748report that he felt “like crap” for killing Bolar. Analyzing Taylor’s
¶749claim under the proper Strickland standard, we conclude that his
¶750claims fail.
¶751 7 See Owens v. State, 324 Ga. App. 198, 206 (749 SE2d 783) (2013) (analyzing a claim of ineffective assistance under Strickland’s prejudice prong); Tyner v. State, 313 Ga. App. 557, 565-567 (722 SE2d 177) (2012) (trial counsel was not deficient under Strickland for failing to present mitigation testimony about the defendant’s mental health when “trial counsel was never made aware of [the defendant’s] condition”). 45 As an initial matter, we have already established that Taylor’s
¶752pre-trial counsel secured two mental health evaluations of Taylor
¶753and that the psychologist who examined him provided two expert
¶754reports. And we have concluded that counsel did not perform
¶755deficiently at the trial stage when, in reliance on Dr. Donegan’s
¶756reports, he declined to further investigate Taylor’s mental health.
¶757See supra, Div. 5 (c). Even to the extent trial counsel testified at the
¶758motion-for-new-trial hearing that his decision not to call experts at
¶759the sentencing stage was not strategic, the standard for evaluating
¶760trial counsel’s conduct is an objective one under Strickland;
¶761“hindsight has no place in an assessment of the performance of trial
¶762counsel, and a lawyer second-guessing his own performance with the
¶763benefit of hindsight has no significance for an ineffective assistance
¶764of counsel claim,” and we cannot say that trial counsel was
¶765constitutionally deficient under the circumstances presented in this
¶766case by declining to have an additional expert evaluate and then
¶767testify about Taylor’s mental health at his sentencing. Keener v.
¶768State, 301 Ga. 848, 850 (804 SE2d 383) (2017) (cleaned up)
¶769 46 (deemphasizing testimony from defendant’s attorneys who
¶770disagreed about whether a witness was cross-examined deficiently).
¶771 To the extent that Taylor’s statement that his trial counsel “did
¶772not seek out Dr. Donegan . . . to address [his] punishment” can be
¶773read as an argument that his trial counsel was deficient for failing
¶774to call Dr. Donegan to testify at his sentencing, that claim also fails.
¶775Any findings Taylor may have deemed helpful from Dr. Donegan’s
¶776report were undercut by Dr. Donegan’s ultimate conclusion that it
¶777was “reasonable to presume” that substance abuse contributed to
¶778Taylor attacking Bolar and Roberts and that Taylor was not “unable
¶779(as a result of mental illness of impairment) to distinguish basic
¶780concepts of right and wrong during those times.” Thus, trial counsel
¶781was not objectively unreasonable for declining to have Dr. Donegan
¶782testify during Taylor’s sentencing. See Sullivan, 308 Ga. at 512
¶783(whether to call an expert witness to testify about a defendant’s
¶784“mental health and its effect on his criminal responsibility” is a
¶785matter of trial strategy, and “to establish that a strategic decision
¶786constitutes deficient performance, a defendant must show that no
¶787 47 competent attorney, under similar circumstances, would have made
¶788it” (cleaned up)); Martin v. State, 306 Ga. 747, 751-752 (833 SE2d
¶789122) (2019) (holding that trial counsel did not perform deficiently by
¶790not procuring an expert to evaluate and testify about the defendant’s
¶791mental health because it might have led to discovery and admission
¶792of testimony trial counsel preferred to have excluded).
¶793 Next, we cannot say that trial counsel was constitutionally
¶794deficient because he did not seek and present other mitigation
¶795evidence at sentencing. To that end, Taylor has not offered any
¶796additional mitigation evidence that trial counsel reasonably could
¶797have obtained, making only a passing reference to evidence “already
¶798in the record” and a “colloquy at trial” without offering any specific
¶799example or citing any specific portion of the record or transcript. “It
¶800is not the function of this Court to cull the record for a party to find
¶801alleged errors or to form arguments on the appellant’s behalf.”
¶802Neuman v. State, 311 Ga. 83, 96 (856 SE2d 289) (2021) (citing
¶803Henderson v. State, 304 Ga. 733, 739 (822 SE2d 228) (2018)). Taylor
¶804 48 has failed to carry his burden of showing that counsel performed
¶805deficiently in failing to provide additional mitigating evidence.
¶806 Finally, with respect to Taylor’s last claim, we assume without
¶807deciding that trial counsel’s performance at sentencing was deficient
¶808when he failed to emphasize to the court the statement that Taylor
¶809felt “like crap” after attacking Bolar. We accordingly must ask
¶810whether there is a “reasonable probability” that Taylor would have
¶811received a lesser sentence had his trial counsel invoked that
¶812statement at sentencing. Strickland, 466 U.S. at 694.
¶813 We cannot say that there is a “reasonable probability” that
¶814Taylor would have received a lighter sentence had trial counsel
¶815invoked Taylor’s statement. Id. As mentioned above, the evidence
¶816that Taylor killed Bolar was strong; the attack was recorded on a
¶817surveillance video that was played for the jury, and Taylor did not
¶818dispute that he attacked Bolar. Moreover, the trial court observed
¶819first-hand the aspects of Taylor’s apology in which he said he was
¶820“sorry for taking an innocent man’s life” and that he “accepted
¶821responsibility for” causing Bolar’s death. We cannot say that “there
¶822 49 is a reasonable probability that” Taylor’s sentence “would have been
¶823different” had his trial counsel also referenced an additional self-
¶824serving comment from Dr. Donegan’s expert report—and not made
¶825in person, where the trial court could have better assessed
¶826credibility—about how Taylor said he felt, especially given that the
¶827trial court was already weighing competing evidence of Taylor’s
¶828remorse or lack thereof, and that any additional apologetic comment
¶829the court credited could be viewed as cumulative. See Lewis v. State,
¶830312 Ga. 537, 544 (863 SE2d 65) (2021) (holding that failure to
¶831present cumulative evidence was not prejudicial); Wesley v. State,
¶832286 Ga. 355, 358 (689 SE2d 280) (2010) (same). See also Hulett v.
¶833State, 296 Ga. 49, 70 (766 SE2d 1) (2014) (holding that the defendant
¶834was not prejudiced by defense counsel’s decision not to present
¶835mitigation evidence that was both “cumulative” of evidence
¶836presented and less “detailed and compelling”).
¶837 Judgment affirmed. All the Justices concur.
¶838 50