Middlebrooks v. State

¶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 S22A1328. MIDDLEBROOKS v. THE STATE.

¶5 ELLINGTON, Justice.

¶6 After Marina Middlebrooks pleaded not guilty by reason of

¶7insanity to charges arising from the stabbing death of her daughter,

¶8Sky Allen, a jury found Middlebrooks guilty of murder and cruelty

¶9to children in the first degree.1 On appeal, Middlebrooks contends

¶10 1 The crimes occurred on May 2, 2013. On July 10, 2013, a Columbia County grand jury returned an indictment charging Middlebrooks with malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), and cruelty to children in the first degree (Count 3). On January 26, 2016, Middlebrooks was re-indicted on the same counts in Richmond County. Following a February 2016 trial, a Richmond County jury found Middlebrooks guilty on all three counts. On February 29, 2016, the trial court sentenced Middlebrooks to serve life in prison without parole on Count 1 and to serve 20 years in prison on Count 3. The judgment indicated that Count 2 merged with Count 1, although it was actually vacated by operation of law. See Bradley v. State, 305 Ga. 857, 857 n.1 (828 SE2d 322) (2019). Middlebrooks filed a timely motion for a new trial, which, through new counsel, she amended on May 27 and October 5, 2020. Following a hearing on November 24, 2020, the trial court denied Middlebrooks’s motion for a new trial on August 19, 2021. Middlebrooks filed a timely notice of appeal, and the case was docketed in this Court for the August 2022 term and orally argued on November 8, 2022. that the trial court erred in allowing the State’s expert witness to

¶11testify as to what happens when a person is found not guilty by

¶12reason of insanity. In addition, Middlebrooks contends that “[t]he

¶13trial court erred in restricting the testimony of [her] diagnosing

¶14psychiatrist,” an employee of the Department of Veterans’ Affairs

¶15(“VA”), “without following the correct procedure” under federal

¶16regulations concerning the testimony of VA personnel in legal

¶17proceedings. In a related claim, Middlebrooks contends that her

¶18“trial counsel was ineffective in failing to object to the limitation of

¶19[the witness’s] testimony by the [f]ederal [g]overnment and the

¶20[p]rosecutor.” For the reasons explained below, we affirm.

¶21 After indictment in Columbia County, where Sky’s dead body

¶22was discovered, the case was transferred to and re-indicted in

¶23Richmond County, based on Middlebrooks’s pretrial statements that

¶24placed the alleged criminal acts outside her Richmond County home.

¶25Middlebrooks filed a notice of intent to raise the issue that she was

¶26insane at the time of the acts charged against her. Before the trial

¶27began, the State and Middlebrooks entered into a stipulation that,

¶28 2 “[o]n May the 2nd, 2013, the Defendant, Marina Mae Middlebrooks,

¶29acting alone, caused the death of Sky Lyric Allen, by stabbing her in

¶30the neck. This act occurred in Richmond County, Georgia.” Because

¶31the parties stipulated that Middlebrooks killed her daughter, the

¶32primary issue the jury had to decide was Middlebrooks’s mental

¶33capacity at the time she committed the crimes, with the possible

¶34verdicts being not guilty, not guilty by reason of insanity, guilty but

¶35mentally ill, or guilty. 2 The jury was required to return a verdict of

¶36not guilty by reason of insanity if the jury found beyond a reasonable

¶37doubt that Middlebrooks committed the crimes charged in the

¶38 2 OCGA § 17-7-131 (b) (1) provides: In all cases in which the defense of insanity, mental illness, or intellectual disability is interposed, the jury, or the court if tried by it, shall find whether the defendant is: (A) Guilty; (B) Not guilty; (C) Not guilty by reason of insanity at the time of the crime; (D) Guilty but mentally ill at the time of the crime, but the finding of guilty but mentally ill shall be made only in felony cases; or (E) Guilty but with intellectual disability, but the finding of intellectual disability shall be made only in felony cases. At the time of Middlebrooks’s trial, the fifth verdict option was “guilty but mentally retarded.” Since July 1, 2017, the fifth option has been “guilty but with intellectual disability.” See Ga. L. 2017, p. 471, § 3.

¶39 3 indictment and also found by a preponderance of the evidence that

¶40she was legally insane at that time, that is, she did not have the

¶41mental capacity to distinguish between right and wrong in relation

¶42to the act.3 At the beginning of trial, the trial court read the parties’

¶43 3 See OCGA §§ 16-3-2 (“A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, that person did not have the mental capacity to distinguish between right and wrong in relation to the act.”); 17-7-131 (a) (“For purposes of this Code section, the term . . . ‘[i]nsane at the time of the crime’ means meeting the criteria of Code Section 16-3-2 or 16-3-3. However, the term shall not include a mental state manifested only by repeated unlawful or antisocial conduct.”); 17-7-131 (c) (1) (“The defendant may be found ‘not guilty by reason of insanity at the time of the crime’ if he or she meets the criteria of Code Section 16-3-2 or 16-3- 3 at the time of the commission of the crime. If the court or jury should make such finding, it shall so specify in its verdict.”); Bowman v. State, 306 Ga. 97, 100 (1) (c) (829 SE2d 139) (2019) (“In Georgia, a defendant is presumed to be sane and a defendant asserting an insanity defense has the burden to prove by a preponderance of the evidence that he was insane at the time the crime was committed.” (citation omitted)). We note that Middlebrooks’s counsel did not seek a jury instruction based on the other Code section referenced in OCGA § 17-7-131 (c) (1), OCGA § 16-3-3, which provides: “A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” At the charge conference, defense counsel stated, “[w]e are not claiming a justification delusion defense, [although] we do have a compulsive delusion[,]” because there was no “proof of justification.” See Buford v. State, 300 Ga. 121, 125 (1) (b) (793 SE2d 91) (2016) (“When a delusional compulsion is the basis of an insanity defense, the delusion must be one that, if it had been true, would have justified the defendant’s actions.” (citation omitted)); id. (holding that, because the defendant “could not articulate the particulars of any delusion from which he was suffering that would have justified his actions,” he could not “establish insanity pursuant to OCGA § 16-3-3”). 4 stipulation to the jury and instructed the jury that, based on the

¶44stipulations that had been entered into, Middlebrooks’s “plea of not

¶45guilty by reason of insanity frame[d] the issue that [the jury was]

¶46sworn and empaneled to try in this particular case.”

¶47 The State presented the testimony of investigators and other

¶48witnesses as to the circumstances of the crimes. That uncontested

¶49evidence showed that, on May 2, 2013, a passerby saw

¶50Middlebrooks’s car swerve out of its lane on Ray Owens Road in

¶51Columbia County and then crash into a tree. The witness called 911.

¶52First responders found Middlebrooks in the driver’s seat. She was

¶53nude except for a sweatshirt and covered in blood. One first

¶54responder testified that Middlebrooks “did not appear to be fully

¶55conscious.” Middlebrooks told the first responders that “someone

¶56had done something” to her, but provided no details. To most of the

¶57first responders’ questions about what had happened to her, she

¶58answered, “I don’t know. I don’t remember.” While tending to

¶59Middlebrooks, first responders found her two-year-old daughter,

¶60Sky, dead on the car’s rear floor, underneath a pile of clothes. Sky

¶61 5 was also unclothed, covered in dried blood, and had a gaping stab

¶62wound to her neck. Her body had already cooled. A bloody pair of

¶63scissors lay in the front passenger seat. A medical examiner later

¶64determined that Sky had suffered multiple stab wounds, one of

¶65which severed a jugular vein, resulting in fatal blood loss. The

¶66wounds were consistent with having been created by the sharp edges

¶67of an opened pair of scissors. Middlebrooks had multiple puncture

¶68wounds and lacerations to her neck, face, chest, arms, wrists, and

¶69knee. Her neck wounds were severe enough to require intubation for

¶70a few days.

¶71 After the State presented evidence of the circumstances of the

¶72crimes, Middlebrooks called several witnesses in support of her

¶73insanity defense. After being qualified as an expert, Dr. Geoffrey

¶74McKee, a board-certified criminal forensic psychologist, testified

¶75that he evaluated Middlebrooks in October 2014, when he spent 6

¶76hours, 25 minutes with her, and February 2016, when he spent an

¶77hour with her. In addition to administering psychological tests and

¶78interviewing Middlebrooks, Dr. McKee reviewed records of previous

¶79 6 evaluations and treatment of Middlebrooks, including a four-week

¶80hospitalization at the VA hospital in the summer of 2011, when she

¶81was diagnosed with “schizophreniform disorder” and with “post

¶82traumatic stress disorder,” arising from her 13 months in combat

¶83zones in Iraq. Dr. McKee testified that Middlebrooks was readmitted

¶84to the VA hospital for two weeks in February 2012 and diagnosed

¶85with “schizophrenia continuous, meaning that the symptoms were

¶86recurring on a . . . near daily basis,” and “schizophrenia paranoid

¶87type, which means that she had delusions of persecution, feelings

¶88that other people would hurt her even though there was no evidence

¶89of that.” For example, the records showed that Middlebrooks

¶90reported believing that other people wanted her to kill herself. Dr.

¶91McKee also reviewed the records from Middlebrooks’s five-day

¶92hospitalization following her arrest for Sky’s death and her

¶93hospitalization at East Central Regional Hospital in Augusta that

¶94began seven weeks after Sky’s death and lasted for about six weeks.

¶95In reviewing the records of the VA hospitalizations and the post-

¶96arrest hospitalizations, Dr. McKee looked for any indication in those

¶97 7 records that Middlebrooks was “malingering” – faking her

¶98symptoms – and he found none.

¶99 Dr. McKee testified about his own examinations of

¶100Middlebrooks and described some of the fixed delusions she

¶101reported, such as that “she could control and slow down time by

¶102moving her hands in a particular way.” Dr. McKee testified that

¶103Middlebrooks reported that, just before the crimes, she stripped

¶104herself and her daughter naked, even removing their earrings,

¶105“because she believed that to get to heaven she and her daughter

¶106would have to die” by their own hands, “but that they had to be

¶107naked because the clothes, including any jewelry, would block the

¶108spirits from leaving” their bodies. Dr. McKee administered several

¶109psychological tests to Middlebrooks, some of which are designed to

¶110detect malingering, and he found no evidence of malingering during

¶111the course of his own evaluation. Dr. McKee testified that

¶112“[c]ommand auditory hallucinations are not uncommon in persons

¶113with schizophrenia, but often with people who try to malinger

¶114schizophrenia, when they are charged with a crime will tell the

¶115 8 examiner that they had a command auditory hallucination” ordering

¶116them to commit the particular crime. Dr. McKee found it a

¶117significant indication that Middlebrooks was not malingering that,

¶118according to the records from her hospitalization in the days after

¶119the crimes, she “did not seize upon [a command hallucination] as a

¶120way of explaining away all that she had done.” Based on

¶121Middlebrooks’s history and his own evaluation, Dr. McKee

¶122diagnosed her with paranoid schizophrenia. In Dr. McKee’s opinion,

¶123at the time of the crimes, Middlebrooks “suffered from

¶124schizophrenia, a serious psychiatric disorder[,]” that “as a result of

¶125that disorder she did not have the mental capacity to know right

¶126from wrong[,]” and that “the delusional component of that . . .

¶127disorder overmaster[ed] her will to resist committing her offenses.”

¶128Dr. McKee testified that, in his more than 40-year career, he had

¶129evaluated more than 40 women who had killed one or more of their

¶130own children. Out of those 40 cases, Dr. McKee had found that only

¶1314 of those mothers, including Middlebrooks, were insane.

¶132 Dr. Donna Schwartz-Watts, the chief psychiatrist for female

¶133 9 patients at Patrick B. Harris Psychiatric Hospital in Anderson,

¶134South Carolina, also testified as an expert witness. Dr. Schwartz-

¶135Watts evaluated Middlebrooks in February 2014, when she spent

¶136“over two hours” with her, and “saw her again a period of time later.”

¶137Like Dr. McKee, Dr. Schwartz-Watts reviewed records of

¶138Middlebrooks’s previous mental health treatment, including just

¶139after she killed Sky. Dr. Schwartz-Watts also reviewed statements

¶140by witnesses to the crash, Middlebrooks’s emergency treatment, and

¶141her arrest; examined detention records; and interviewed

¶142Middlebrooks’s mother and other witnesses. She found that

¶143Middlebrooks exhibited a common symptom of schizophrenia, a type

¶144of delusion called “ideas of reference,” and a very rare symptom,

¶145called “clanging.” She explained that, rather than expressing

¶146thoughts that were connected rationally, Middlebrooks would say

¶147words in a sequence that were related to each other only by “the

¶148sound of the words.” Dr. Schwartz-Watts described clanging as “one

¶149of the most severe and regressed forms of thought process, of

¶150connecting thoughts together,” and testified that it is a difficult

¶151 10 symptom to fake. In Dr. Schwartz-Watts’s opinion, Middlebrooks’s

¶152notes and drawings when she was intubated in the days after the

¶153crimes revealed signs of paranoid and delusional thinking. Dr.

¶154Schwartz-Watts testified that Middlebrooks reported that, in the

¶155days before she killed Sky, she was having recurrent delusional

¶156thoughts and compulsions that she and Sky “each had to commit

¶157suicide.” Middlebrooks said that she believed that God had given her

¶158and Sky a “green aura” that made them “special and unique” and

¶159that she and her daughter were being “persecuted” by people who

¶160“would mean them harm” because “they would want to have access

¶161to that gift[.]” Middlebrooks told Dr. Schwartz-Watts that, by

¶162committing suicide, she and Sky would “go to heaven so that they

¶163would be safe.” Dr. Schwartz-Watts testified that “morally

¶164[Middlebrooks] believed that she was doing God’s will” and that, for

¶165Sky to go to heaven, “[Sky] had to kill herself. [Middlebrooks] could

¶166not kill her daughter. So she took the scissors and had her daughter

¶167stab herself, helping her with the scissors. She stabbed her daughter

¶168thinking it’s the daughter’s hand[.]” Then Middlebrooks stabbed

¶169 11 herself and started driving to the marina, where she planned to

¶170finish killing herself. Middlebrooks explained to Dr. Schwartz-Watts

¶171that she was not completely naked when she crashed into the tree,

¶172because she put on a sweater after seeing a police officer stop

¶173another car and she did not want the police to stop her and prevent

¶174her from reaching the marina and completing her suicide. Based on

¶175Middlebrooks’s history of paranoid delusions and hallucinations, her

¶176psychotic behavior around the time of the crimes, and psychotic

¶177thinking that Dr. Schwartz-Watts personally observed during her

¶178evaluation sessions, she diagnosed Middlebrooks with acute

¶179schizophrenia. In Dr. Schwartz-Watts’s opinion, at the time of the

¶180offense, Middlebrooks did not “recognize[e] what she was doing was

¶181wrong,” but thought “she was doing the right thing” when she killed

¶182Sky.

¶183 Dr. Donald Evans, a staff psychiatrist at the VA Medical

¶184Center in Augusta, testified about Middlebrooks’s two prior

¶185 12 hospitalizations in that facility. 4 He testified that in July 2011,

¶186Middlebrooks, an Iraq War veteran, “was admitted in a psychotic

¶187state, meaning, her reality was so distorted that she couldn’t trust

¶188her senses.” That hospitalization lasted approximately four weeks.

¶189During that time, Dr. Evans testified, Middlebrooks expressed that

¶190“[s]he was disturbed by what she described as people knowing what

¶191thoughts were in her head, putting thoughts in her head, or taking

¶192some of those thoughts out. And then she had some paranoid ideas

¶193that people were going to hurt her, and her physiology reflected

¶194that.” Middlebrooks was placed on antipsychotic medication that

¶195was “meant to help return thinking to cohesive functioning” and

¶196“quiet down” distorted thinking in the form of hallucinations or

¶197delusions. Dr. Evans read from a progress note in Middlebrooks’s

¶198chart, showing that the medications were given to treat

¶199“schizophreniform,” and he explained that “[s]chizophreniform is a

¶200diagnosis for a disturbance of perceptions that last for a period of

¶201 4 As discussed in Division 2, infra, Evans testified as a fact witness only, not as an expert. 13 less than six months.” He testified that, “[i]f that disturbance goes

¶202beyond six months then it becomes schizophrenia, and both of those

¶203conditions I diagnosed.”

¶204 Middlebrooks’s mother and father testified about their

¶205daughter’s mental breakdown in 2012, which resulted in the second

¶206hospitalization at the VA Hospital in Augusta. They found

¶207Middlebrooks walking aimlessly down the middle of a busy street,

¶208and she could not answer where she was going. When her father was

¶209driving her home, she tried to jump out of his truck. She told her

¶210father that he was the devil or “something evil” and screamed “don’t

¶211kill me.” Middlebrooks’s father testified that, after Middlebrooks

¶212returned from combat service in Iraq, she had changed – her face

¶213was “blank,” she “start[ed] forgetting things,” her “patience [was]

¶214shot,” and, when he looked in her eyes, “something was missing,

¶215something was gone.” Middlebrooks sometimes told her mother that

¶216she was hearing voices. In the weeks before Sky’s death,

¶217Middlebrooks’s mother thought that Middlebrooks seemed

¶218withdrawn and that something was wrong with her. Middlebrooks’s

¶219 14 sister and brother-in-law testified, describing several incidents of

¶220Middlebrooks’s “belligerent” and bizarre behavior in the years

¶221between her return from Iraq in 2006 and Sky’s death in 2013,

¶222including having loud arguments with herself and accusing

¶223strangers of “talking bad about her and looking at her funny.” In

¶224early 2013, Middlebrooks told her sister that VA doctors diagnosed

¶225her with schizophrenia. Middlebrooks did not testify.

¶226 The State presented the testimony of Middlebrooks’s cellmate

¶227at the Columbia County jail in November 2014, Kala Stewart, as to

¶228statements Middlebrooks made while awaiting trial. Stewart

¶229testified that Middlebrooks told her that “she killed her child before

¶230she left the house, her driveway,” and “she did it out of spite of her

¶231boyfriend.” Stewart testified that Middlebrooks told her that “her

¶232lawyer was going for mental illness” as a defense, but Middlebrooks

¶233told Stewart that “she [was not] mentally ill.” Middlebrooks told

¶234Stewart that she did not think her case was going well.

¶235 In addition, the State presented expert testimony to rebut the

¶236testimony of Middlebrooks’s expert witnesses that they found no

¶237 15 evidence of malingering, either in Middlebrooks’s past mental

¶238health records or in their own evaluations. Dr. Michael Vitacco, after

¶239being qualified as an expert in forensic psychology, testified that he

¶240evaluated Middlebrooks at the East Central Regional Hospital,

¶241where he serves as a licensed clinical psychologist, over the course

¶242of 40 days in June and July 2013, beginning seven weeks after Sky’s

¶243death. In addition to formally interviewing Middlebrooks three

¶244times and giving her psychological tests, meetings lasting a total of

¶2453 hours and 20 minutes, Dr. Vitacco spoke with her briefly

¶246approximately 20 times over her 40-day stay. He also communicated

¶247with her treating psychiatrist and other caregivers who interacted

¶248with Middlebrooks for extended periods daily. After Middlebrooks

¶249returned to the jail, he and a colleague prepared a Criminal

¶250Responsibility Evaluation report and a Competency to Stand Trial

¶251Evaluation report.

¶252 In Dr. Vitacco’s opinion, other practitioners’ diagnosis of

¶253schizophrenia was not supported by the evidence, one reason being

¶254that the records showed that Middlebrooks’s symptoms improved

¶255 16 during each hospitalization much more quickly than would typically

¶256happen in cases of acute schizophrenia. Dr. Vitacco testified that,

¶257during interviews with him, Middlebrooks reported hearing voices

¶258and behaved consistently with that symptom, but she would behave

¶259“quite differently,” appearing to be unaffected by hallucinations,

¶260when she was “away from the people who were interviewing her.”

¶261Dr. Vitacco noted that, according to Middlebrooks’s mental health

¶262records, she reported paranoid delusions that “people were out to get

¶263her,” but “at no point” before she killed Sky “did she endorse a

¶264delusion consistent with killing her child.” He also found it

¶265significant that Middlebrooks never reported any religious delusions

¶266until after she killed Sky and was being evaluated for criminal

¶267responsibility, at which point she reported a religious delusion that

¶268she was on a mission from God to help Sky go to heaven. Dr. Vitacco

¶269testified that Middlebrooks’s description of the events “changed

¶270dramatically” and evolved from telling first responders that she had

¶271no recollection of the entire event, to telling detectives that nothing

¶272happened and Sky was still alive, and then, “[f]ast forward just eight

¶273 17 weeks and she had a perfect recollection, once she arrived at the

¶274hospital, of everything that happened in that car, including being

¶275able to describe the last minutes of her daughter’s life.” Dr. Vitacco

¶276believed that, after being given the Structured Interview of Reported

¶277Symptoms test, Middlebrooks falsely reported a version of some of

¶278the specific hallucinations that were questions on the test. He

¶279testified that she reported “a slew of new symptoms” after she killed

¶280Sky, “each one self-serving to justify the death of her daughter[,]”

¶281but she did not display the behavioral “signs” of someone

¶282experiencing the reported symptoms. Staff members saw

¶283Middlebrooks “greeting [other patients] warmly” and laughing with

¶284them – she was even “voted vice-president of [her] unit because her

¶285peers liked her so much” – and she followed hospital rules and

¶286behaved appropriately in classes and group sessions. Dr. Vitacco

¶287testified that, “on several occasions[,]” after a class or group,

¶288Middlebrooks “would approach the group leader” and ask “specific

¶289questions about the insanity defense” and “how . . . one go[es] about

¶290it.” During the last week of her 40-day stay at the hospital,

¶291 18 Middlebrooks told her treating psychiatrist that she was “feeling

¶292hopeful . . . about the possibility of building an NGRI case.”

¶293 Dr. Vitacco defined malingering as “the intentional production

¶294of symptoms in order to basically get out of something,” such as, in

¶295the criminal justice context, “to get out of going to prison or going to

¶296trial.” After reviewing evidence about Middlebrooks’s behavior in

¶297the few days surrounding Sky’s death, including a videotaped police

¶298interview, reviewing the VA records, personally interviewing and

¶299observing Middlebrooks, and administering tests designed, in part,

¶300to detect malingering, Dr. Vitacco concluded that Middlebrooks was

¶301“retrospectively malingering,” that is, feigning having had

¶302symptoms at the time of Sky’s death in order to avoid criminal

¶303responsibility for the death of her daughter.

¶304 Based on the totality of the evidence Dr. Vitacco reviewed, his

¶305professional opinion was that, “when [Middlebrooks] killed her

¶306daughter[,]” she “was not mentally ill[;]” specifically, she was not

¶307“psychotic” or suffering from “schizophrenia[,]” which is a “thought

¶308disorder.” Dr. Vitacco testified that Middlebrooks was diagnosed,

¶309 19 during her hospitalization at East Central Regional Hospital, with

¶310post-traumatic stress disorder and with “a series of personality

¶311disorders[,]” which are “maladaptive traits” that are “not considered

¶312. . . disorder[s] of thought or mood that substantially impair[ ] one’s

¶313judgment, one’s behavior, one’s ability to recognize reality[.]” In

¶314terms of personality disorders, Dr. Vitacco testified that

¶315Middlebrooks was diagnosed with “borderline personality disorder”

¶316and “adjustment disorder.” Despite these diagnoses, in Dr. Vitacco’s

¶317expert opinion, when Middlebrooks killed her daughter, “she was

¶318very aware of right from wrong” and “was very aware that murder

¶319was against the law, both morally wrong and legally wrong.” He

¶320testified that he did not believe that Middlebrooks “was experiencing

¶321a delusional compulsion that overmastered her will” at the time of

¶322the crime and that, even if he did believe her, the nature of the

¶323delusion she reported would not have justified the act of killing her

¶324daughter. In Dr. Vitacco’s opinion, Middlebrooks was simply “angry

¶325and she took it out on her two-year-old child.” Asked if he had “any

¶326personal stake in the outcome of this case,” Dr. Vitacco replied that

¶327 20 he had no personal stake in the case and described himself as “a

¶328state employee and a psychologist” who was not “paid by the

¶329prosecution or the defense” and was “simply a [j]udge’s witness.”

¶330 At the end of Dr. Vitacco’s direct testimony, the prosecutor

¶331asked him “what happens when a person is found not guilty by

¶332reason of insanity?” Defense counsel did not object before Dr. Vitacco

¶333responded that the person “would come to our hospital for a period

¶334of 30 days. And then we would evaluate that individual . . . to

¶335determine if they were mentally ill . . . and dangerous to themselves

¶336or others. And then we would have a hearing in 30 days to determine

¶337if they could be released[, as required by] state law[.]” The

¶338prosecutor asked, “[b]y law, if that person is not a danger to themself

¶339or others and is not suffering from a mental illness, what is the

¶340[c]ourt obligated to do?” Dr. Vitacco answered, “[A]ccording to the

¶341Supreme Court[, the trial court would] be obligated to release that

¶342individual.” Middlebrooks’s counsel objected to “this man giving a

¶343legal opinion” and moved to strike the testimony, arguing that

¶344“Georgia law tells us what the law is. [Such a person does not] get

¶345 21 out until you say they get out. . . . [T]he [j]udge gives the law . . . not

¶346the State’s witness.” The trial court overruled the objection and

¶347declined to strike the testimony.

¶348 1. Middlebrooks contends that the trial court abused its

¶349discretion in overruling her objection to Dr. Vitacco’s testimony

¶350about what happens after a jury finds a criminal defendant not

¶351guilty by reason of insanity and in denying her motion to strike the

¶352testimony. She contends that the testimony constituted improper

¶353legal opinion testimony and that the law should have come only from

¶354the judge. In addition, Middlebrooks argues that Dr. Vitacco’s

¶355testimony paraphrased parts of OCGA § 17-7-131, pertaining to

¶356evaluation and commitment following a verdict of not guilty by

¶357reason of insanity, information that should not have been conveyed

¶358to the jury, and that his paraphrase was incomplete and misleading.

¶359 Middlebrooks argues that Dr. Vitacco’s reference to those

¶360aspects of the law was especially harmful because he described

¶361himself as the “[j]udge’s witness” and because he implied that he

¶362personally would be evaluating her after verdict. Because Dr.

¶363 22 Vitacco had testified that he had already found that Middlebrooks

¶364was merely malingering and not mentally ill, Middlebrooks

¶365contends that the testimony improperly encouraged the jury to

¶366believe that, if the jury returned a verdict of not guilty by reason of

¶367insanity, the trial court would have no choice but to release her

¶368immediately after a 30-day post-trial evaluation. And she argues

¶369that the trial court’s instruction about the consequences of a verdict

¶370of not guilty by reason of insanity did not correct and override Dr.

¶371Vitacco’s misleading paraphrase of OCGA § 17-7-131, because the

¶372court’s instruction did not directly contradict Dr. Vitacco’s statement

¶373and could be understood by the jury as complementary with that

¶374testimony. She also argues that the trial court’s instruction that the

¶375jury is not to concern itself with punishment did not alleviate the

¶376harm caused by the statement because commitment after a not

¶377guilty by reason of insanity verdict is not in the nature of

¶378punishment and therefore the instruction about the jury not

¶379concerning itself with punishment did not apply.

¶380 When an accused pleads not guilty by reason of insanity at the

¶381 23 time of the crime, the Criminal Procedure Code requires the trial

¶382court to instruct the jury in specific and limited terms regarding the

¶383consequences of each potential verdict. 5 See OCGA § 17-7-131 (b) (3).

¶384One of these instructions is that, “should you find the defendant not

¶385guilty by reason of insanity at the time of the crime, the defendant

¶386 5 OCGA § 17-7-131 (c) provides in pertinent part: In all criminal trials in any of the courts of this state wherein an accused shall contend that he or she was insane, mentally ill, or intellectually disabled at the time the act or acts charged against him or her were committed, the trial judge shall instruct the jury that they may consider, in addition to verdicts of “guilty” and “not guilty,” the additional verdicts of “not guilty by reason of insanity at the time of the crime,” “guilty but mentally ill at the time of the crime,” and “guilty but with intellectual disability.” See Foster v. State, 283 Ga. 47, 49 (2) (656 SE2d 838) (2008) (“When a defense of insanity has been interposed, OCGA § 17-7-131 (c) requires that the jury be instructed to consider all five verdict options set forth therein. The failure to charge on all five options is harmless error if there is no evidence to support the verdict option or options omitted.”); see also Durrence v. State, 287 Ga. 213, 216 n.4 (695 SE2d 227) (2010) (Recognizing the clear legal distinctions between being insane at the time of the crime and being mentally ill or mentally retarded, which was the fifth verdict option at the time, each of which requires different forms of proof, “and their correlating similarities, OCGA § 17-7-131 (c) requires that the jury be instructed to consider all five verdict options set forth therein when a defense of insanity is raised.”). In this case, there was no evidence of any mental retardation or intellectual disability, and neither the trial court’s jury charge nor the verdict form included the verdict option of “guilty but mentally retarded.” Although OCGA § 17-7-131 (c) requires that the jury be instructed to consider all five verdict options set forth in the statute, Middlebrooks does not claim that it was error to omit the fifth option in her case.

¶387 24 will be committed to a state mental health facility until such time,

¶388if ever, that the court is satisfied that he or she should be released

¶389pursuant to law.” OCGA § 17-7-131 (b) (3) (A).6 See Foster v. State,

¶390306 Ga. 587, 590-592 (2) (a) (832 SE2d 346) (2019).

¶391 This Court has explained that the jury instructions required by OCGA § 17-7-131 (b) (3) create a limited exception to the general rule proscribing consideration of

¶392 6 In full, OCGA § 17-7-131 (b) (3) provides: (3) In all cases in which the defense of insanity, mental illness, or intellectual disability is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following: (A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law. (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be placed in the custody of the Department of Corrections which will have responsibility for the evaluation and treatment of the mental health needs of the defendant, which may include, at the discretion of the Department of Corrections, referral for temporary hospitalization at a facility operated by the Department of Behavioral Health and Developmental Disabilities. (C) I charge you that should you find the defendant guilty but with intellectual disability, the defendant will be placed in the custody of the Department of Corrections, which will have responsibility for the evaluation and treatment of the mental health needs of the defendant, which may include, at the discretion of the Department of Corrections, referral for temporary hospitalization at a facility operated by the Department of Behavioral Health and Developmental Disabilities.

¶393 25  the consequences of a guilty verdict. This exception protects the defendant’s right to an impartial verdict by correcting any misconceptions jurors may have that a verdict of not guilty by reason of insanity, guilty but mentally ill, or guilty but with intellectual disability would result in the defendant’s immediate release (as does a verdict of not guilty). . . . Once the jury understands the nature of these particular verdicts, it can focus solely on the mental condition of the defendant and decide that issue free from concerns about whether and how the defendant might be punished.

¶394Id. at 593 (2) (b) (citation and punctuation omitted).

¶395 In this case, Dr. Vitacco introduced aspects of the consequences

¶396of a verdict of not guilty by reason of insanity that appear in parts

¶397of OCGA § 17-7-131 and the statutory criteria for involuntary civil

¶398commitment 7 that are not pertinent to the issues to be decided by

¶399 7 OCGA § 17-7-131 (d) provides: Whenever a defendant is found not guilty by reason of insanity at the time of the crime, the court shall retain jurisdiction over the person so acquitted and shall order such person to be detained in a state mental health facility, to be selected by the Department of Behavioral Health and Developmental Disabilities, for a period not to exceed 30 days from the date of the acquittal order, for evaluation of the defendant’s present mental condition. Upon completion of the evaluation, the proper officials of the mental health facility shall send a report of the defendant’s present mental condition to the trial judge, the prosecuting attorney, and the defendant’s attorney, if any. OCGA § 17-7-131 (e) (1) provides:

¶400 26 the jury. See OCGA § 17-7-131 (b) (1). And he did so in a way that

¶401could have been misleading. Specifically, Dr. Vitacco referred to an

¶402evaluation at “our hospital,” while the statute provides that a person

¶403found not guilty of a crime by reason of insanity would be detained

¶404at a state mental health facility chosen by the Department of

¶405Behavioral Health and Developmental Disabilities. See OCGA § 17-

¶4067-131 (d). More importantly, his statement that, after 30 days’

¶407 After the expiration of the 30 days’ evaluation period in the state mental health facility, if the evaluation report from the Department of Behavioral Health and Developmental Disabilities indicates that the defendant does not meet the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37, the trial judge may issue an order discharging the defendant from custody without a hearing. After a verdict of not guilty by reason of insanity, the trial judge determines under specified procedures whether the defendant meets the statutory inpatient-commitment criteria. See OCGA §§ 37-3-1 (9.1) (“‘Inpatient’ means a person who is mentally ill and . . . [w]ho presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons . . . and . . . [w]ho is in need of involuntary inpatient treatment.”); 37-3-83 (g) (If, after a specified process, the designated medical officer determines that an involuntarily hospitalized person “is not a person who has mental illness requiring involuntary treatment, the person shall be immediately discharged from involuntary hospitalization[.]”); 37-3-85 (providing for regular review of service plans for patients receiving involuntary inpatient treatment and for modification of plans, including by discharge, as medically appropriate).

¶408 27 evaluation, “we would have a hearing” to determine whether the

¶409person was legally entitled to be released obscured the fact that the

¶410trial court would “retain jurisdiction” over Middlebrooks, OCGA §

¶41117-7-131 (d), 8 and that she could only be discharged from

¶412involuntary commitment by order of the trial court in accordance

¶413with procedures specified in the Code section. See OCGA § 17-7-131

¶414(f).9

¶415 See also OCGA § 17-7-131 (e) (4) (If, after the 30-day evaluation of the 8

¶416defendant’s mental condition and a hearing, if ordered, under OCGA § 17-7- 131 (d), “the judge determines that the defendant meets the [statutory] inpatient commitment criteria . . . , the judge shall order the defendant to be committed to the Department of Behavioral Health and Developmental Disabilities to receive involuntary treatment . . . or to receive services” under the Mental Health Code.). 9 OCGA § 17-7-131 (f) provides:

¶417 A defendant who has been found not guilty by reason of insanity at the time of the crime and is ordered committed to the Department of Behavioral Health and Developmental Disabilities under subsection (e) of this Code section may only be discharged from that commitment by order of the committing court in accordance with the procedures specified in this subsection: (1) Application for the release of a defendant who has been committed to the Department of Behavioral Health and Developmental Disabilities under subsection (e) of this Code section upon the ground that he does not meet the civil commitment criteria under Chapter 3 of Title 37 or Chapter 4 of Title 37 may be made to the committing court, either by such defendant or by the superintendent of the state hospital in which the said defendant is detained; (2) The burden of proof in such release hearing shall be upon

¶418 28  Closing arguments were not transcribed, and we cannot

¶419discern whether either side’s argument clarified Dr. Vitacco’s

¶420response to the question.10 By the same token, we cannot assume

¶421that the prosecutor’s argument amplified the implication that

¶422within a short period the trial court might be obligated to order that

¶423Middlebrooks be released. In the trial court’s final charge to the jury,

¶424the court instructed the jury as required by OCGA § 17-7-131 (b) (3)

¶425regarding the consequences of each of the possible verdicts,

¶426including that, if the jury should find Middlebrooks not guilty by

¶427reason of insanity, she would be committed until such time, if ever,

¶428 the applicant. The defendant shall have the same rights in the release hearing as set forth in subsection (e) of this Code section; and (3) If the finding of the court is adverse to release in such hearing held pursuant to this subsection on the grounds that such defendant does meet the inpatient civil commitment criteria, a further release application by the defendant shall not be heard by the court until 12 months have elapsed from the date of the hearing upon the last preceding application. The Department of Behavioral Health and Developmental Disabilities shall have the independent right to request a release hearing once every 12 months. 10 At the hearing on Middlebrooks’s motion for a new trial, her appellate

¶429counsel asked her trial counsel, “During the closing argument did you discuss the effect of a not guilty by reason of insanity verdict?” Her trial counsel did not answer “yes” or “no” but only stated that he did not remember everything he said in closing argument. 29 the court was satisfied that she should be released pursuant to law.

¶430The trial court’s jury charge did not address the 30-day evaluation

¶431procedure under OCGA § 17-7-131 (d) and the statutory criteria for

¶432involuntary civil commitment that Dr. Vitacco referenced.

¶433 We can see that Dr. Vitacco’s testimony about the

¶434consequences of a verdict of not guilty by reason of insanity, if

¶435credited by jurors as a correct statement of applicable law, could

¶436have reinforced, rather than corrected, any misconceptions jurors

¶437may have had that only a guilty verdict would prevent

¶438Middlebrooks’s nearly immediate release. If taken in this light, Dr.

¶439Vitacco’s testimony undermined an essential purpose of OCGA § 17-

¶4407-131. See Foster, 306 Ga. at 593 (2) (b). Given the narrow focus of

¶441the statutorily prescribed jury instructions, the State should not

¶442have elicited such extraneous testimony. Assuming the trial court

¶443erred in allowing the testimony to stand, we must consider whether

¶444the error was harmless to determine if a new trial is warranted. See

¶445Jones v. State, 315 Ga. 117, 123 (4) (880 SE2d 509) (2022)

¶446(“Erroneous evidentiary rulings are subject to a harmless-error

¶447 30 test.”). The harmless-error test applicable in this case is that for

¶448nonconstitutional error.

¶449 A nonconstitutional error is harmless if the State shows that it is highly probable that the error did not contribute to the verdict, an inquiry that involves consideration of the other evidence heard by the jury. In determining whether the error was harmless, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.

¶450Id. (citations and punctuation omitted); Johnson v. State, 238 Ga.

¶45159, 61 (230 SE2d 869) (1976) (discussing and adopting the highly-

¶452probable test for nonconstitutional errors). 11

¶453 Middlebrooks’s burden in asserting the insanity defense was to

¶454prove by a preponderance of the evidence that she was mentally

¶455 11 To compare the test that governs the determination of harmlessness when an evidentiary ruling amounts to constitutional error, see Moore v. State, 315 Ga, 263, 271 (3) (b) (882 SE2d 227) (2022) (“A constitutional error is harmless if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict, such as when the evidence at issue is cumulative of other properly-admitted evidence or when the evidence against the defendant is overwhelming.” (citation and punctuation omitted)); see also Hill v. State, 310 Ga. 180, 188 (6) (850 SE2d 110) (2020) (alleged violation of the privilege against unreasonable searches); Ensslin v. State, 308 Ga. 462, 473 (2) (d) (841 SE2d 676) (2020) (alleged violation of the privilege against selfincrimination); McCord v. State, 305 Ga. 318, 321 (2) (a) (825 SE2d 122) (2019) (alleged violation of the right to confront witnesses). 31 incapable of distinguishing between right and wrong regarding the

¶456particular acts charged. See Bowman v. State, 306 Ga. 97, 100 (1) (c)

¶457(829 SE2d 139) (2019). As recounted above, opinion evidence given

¶458by Drs. McKee and Schartz-Watts supported a finding that

¶459Middlebrooks’s mental illness of acute schizophrenia with delusions

¶460rendered her incapable of distinguishing between right and wrong

¶461with regard to killing Sky. On the other hand, Dr. Vitacco’s opinion

¶462evidence supported the contrary finding that Middlebrooks was

¶463mentally capable of distinguishing between right and wrong

¶464regarding the act of fatally stabbing her daughter. His testimony

¶465included detailed descriptions of the distinctions between disorders

¶466of thought – disorders, such as schizophrenia, that may rob a person

¶467of the mental capacity to distinguish right from wrong at the time of

¶468a criminal offense – and other mental health conditions that do not

¶469typically have that effect. Dr. Vitacco’s expert opinion that

¶470Middlebrooks did not have a mentally incapacitating thought

¶471disorder when she fatally stabbed Sky was based in part on his

¶472personal observation that Middlebrooks’s behavior was often

¶473 32 inconsistent with the symptoms she reported. In addition, he

¶474testified that he learned from hospital staff members that

¶475Middlebrooks actively sought information about how to “go about”

¶476and “build” an insanity defense. The evidence that Dr. Vitacco

¶477formed his opinions after interacting with and observing

¶478Middlebrooks much closer in time to the crimes and on many more

¶479occasions than had Drs. McKee and Schwartz-Watts is a factor in

¶480assessing the weight of Dr. Vitacco’s expert opinion that

¶481Middlebrooks was faking mental illness to avoid criminal

¶482responsibility for killing her daughter. Another factor is evidence,

¶483introduced through the testimony of Middlebrooks’s cellmate, that

¶484Middlebrooks denied being mentally ill, despite her lawyer’s plan to

¶485present a mental illness defense, and admitted that she killed her

¶486daughter out of spite.

¶487 The State’s burden under the applicable harmless-error test –

¶488showing that “it is highly probable that the error did not contribute

¶489to the verdict” – is a heavy one. Even so, to overturn the jury’s

¶490verdicts on the basis of Dr. Vitacco’s improper testimony, there must

¶491 33 be more than a theoretical possibility that the error contributed to

¶492the verdicts. In assessing nonconstitutional error, we do not look to

¶493a single aspect of Dr. Vitacco’s testimony, divorced from the context

¶494of the entire trial. We consider all of the evidence, and we weigh the

¶495evidence as we would expect reasonable jurors to have done. See

¶496Jones, 315 Ga. at 122 (4). 12 Having reviewed all of the evidence de

¶497novo and weighed it as we would expect reasonable jurors to have

¶498done, we conclude that it is highly likely that Dr. Vitacco’s brief

¶499testimony about the general consequences of a verdict of not guilty

¶500by reason of insanity was not an important factor for the jury

¶501compared to the substantial evidence that Middlebrooks had the

¶502mental capacity to distinguish right from wrong in killing Sky.

¶503Because it is highly probable that the trial court’s ruling on

¶504Middlebrooks’s objection and motion to strike the testimony did not

¶505contribute to the verdict, a new trial is not warranted. See Brookins

¶506 12See also Johnson, 238 Ga. at 61 (Even an error that is “relevant to the issues in dispute, not cumulative of other evidence, not beneficial to the defendant[,] and uncorrected by the trial court . . . may nevertheless be harmless in the context of the entire case.”). 34 v. State, 315 Ga. 86, 99 (5) (879 SE2d 466) (2022).

¶507 2. (a) Middlebrooks contends that “the trial court erred in

¶508restricting” Dr. Evans’s testimony to non-expert matters “without

¶509following the correct procedure” under federal regulations

¶510concerning the testimony of VA personnel in legal proceedings. 13

¶511This claim fails because Middlebrooks failed to preserve any error

¶512in this regard for ordinary appellate review and she failed to show

¶513plain error.

¶514 The record shows that, at the beginning of Middlebrooks’s

¶515presentation of evidence, an assistant United States Attorney

¶516accompanied Dr. Evans to court and advised the trial court that

¶517federal law required approval from the federal government anytime

¶518 13 See 38 CFR §§ 14.800 through 14.810, establishing policy, assigning responsibilities, and prescribing procedures with respect to the testimony of VA personnel and production of department records in federal, state or other legal proceedings. Section 14.808 (a) provides in relevant part: “VA personnel shall not provide, with or without compensation, opinion or expert testimony in any legal proceedings concerning official VA information, subjects or activities, except on behalf of the United States or a party represented by the United States Department of Justice[,]” absent official authorization by the responsible VA official. Section 14.804 sets out the types of factors VA personnel responsible for making the decision whether to authorize the disclosure of VA records or information or the testimony of VA personnel should consider. 35 a federal employee is called as a witness in state court. The federal

¶519attorney reported that, after defense counsel requested that Dr.

¶520Evans testify, the VA Office of General Counsel authorized him to

¶521testify within boundaries, specifically that Dr. Evans could testify

¶522about his personal observations of Middlebrooks, about

¶523conversations he had with her, and about the contents of her medical

¶524records, but he could not serve as an expert witness or answer

¶525hypothetical questions. The prosecutor then argued that, “if [Dr.

¶526Evans] can’t testify as an expert witness[,] then he can’t render an

¶527opinion as to his diagnosis [of Middlebrooks] back in 2011 and 2012.”

¶528Initially, the prosecutor framed an objection based on relevance,

¶529asserting, if Dr. Evans could not give expert opinion testimony, then

¶530none of his testimony would be relevant. Defense counsel stated that

¶531he would not be asking for “a present diagnosis,” but for “a historical

¶532diagnosis,” and argued that such testimony would not constitute

¶533expert testimony.

¶534 In the ensuing colloquy among the trial court and counsel, the

¶535court asked if defense counsel had any legal authority “that

¶536 36 support[ed] what [the defense] wanted to go into [during his

¶537examination of Dr. Evans] based on the restrictions that have been

¶538placed on [his] testimony.” Defense counsel responded that he

¶539intended to ask Dr. Evans about “the nature of [Middlebrooks’s]

¶540hospitalization[,] . . . why she was in the hospital[,] . . . how long she

¶541was in the hospital, and whether or not she was confined in the

¶542hospital.” After a recess, defense counsel, “in an effort to compromise

¶543this issue[,] . . . agree[d] not to ask [Dr. Evans] about his diagnosis”

¶544of Middlebrooks. Defense counsel described Dr. Evans as an

¶545“essential” witness, because he had been Middlebrooks’s caretaker

¶546in the VA mental hospital twice in the years before this crime

¶547occurred[,]” and argued that if he was prohibited from testifying

¶548Middlebrooks would be “deprived of the right of compulsory process

¶549and [her] constitutional rights under both the State and Federal

¶550constitution[s], [her] Sixth Amendment rights.” Softening the

¶551State’s earlier position, the prosecutor stated, “I’m not objecting to

¶552him testifying.” The trial judge stated, “I’m not going to . . . prohibit

¶553him from testifying, but based on restrictions that are in place it

¶554 37 does not appear that he can render a diagnosis.” Defense counsel

¶555responded, “I understand.” The prosecutor advised that he would

¶556object “based on [a lack of] foundation” to any question “that call[ed]

¶557for an opinion[,] . . . including the diagnosis[,]” because such an

¶558opinion could only “be rendered by an expert[.]” Defense counsel

¶559responded, “[w]e can handle that,” the court summoned the jury, and

¶560Dr. Evans took the stand.

¶561 Assuming without deciding that the trial court affirmatively

¶562ruled that Dr. Evans was prohibited from “render[ing] a diagnosis,”

¶563the record establishes that the defense ultimately withdrew any

¶564challenge to such ruling. Without preservation of error as provided

¶565in OCGA § 24-1-103, we review an evidentiary ruling only for plain

¶566error pursuant to OCGA § 24-1-103 (d). See Ellington v. State, 314

¶567Ga. 335, 343 (3) (877 SE2d 221) (2022); Lofton v. State, 309 Ga. 349,

¶568358 (4) (846 SE2d 57) (2020); Martin v. State, 306 Ga. 747, 749 (2)

¶569(833 SE2d 122) (2019). To establish plain error, Middlebrooks “must

¶570point to an error that was not affirmatively waived,” and that “error

¶571must have been clear and not open to reasonable dispute, must have

¶572 38 affected [her] substantial rights, and must have seriously affected

¶573the fairness, integrity or public reputation of judicial proceedings.”

¶574Ellington, 314 Ga. at 343 (3) (citation, punctuation, and footnote

¶575omitted).

¶576 “For purposes of plain error review, an affirmative waiver is

¶577the intentional relinquishment or abandonment of a known right.”

¶578Griffin v. State, 309 Ga. 860, 865 (2) (849 SE2d 191) (2020) (citation

¶579and punctuation omitted). The record shows that the defense

¶580invoked known rights, then proposed a resolution to the parties’

¶581evidentiary dispute that involved voluntarily curtailing

¶582Middlebrooks’s assertion of those rights. The transcript of the

¶583colloquy before Dr. Evans testified shows that defense counsel opted

¶584to proceed with Dr. Evans’s testimony, with the latitude to question

¶585him, without drawing an objection by the State, about the facts of

¶586Middlebrooks’s hospitalizations with the sole limitation that he

¶587could not elicit testimony that Dr. Evans had diagnosed

¶588Middlebrooks with schizophrenia – an opinion that was reflected in

¶589the medical records and referenced in the testimony of

¶590 39 Middlebrooks’s two expert witnesses. In addition, at the hearing on

¶591Middlebrooks’s motion for a new trial, her trial counsel testified that

¶592he had previous experience with “forcing an expert witness who did

¶593not want to appear” as an expert to testify, that witness “made [him]

¶594‘wish’” he had not compelled the witness to testify, and he “didn’t

¶595want to have that situation with Dr. Evans.” Thus, Middlebrooks

¶596intentionally relinquished any claim that the trial court erred in

¶597limiting the scope of Dr. Evans’s testimony, and this claim of error

¶598fails at the first stage of plain-error review. See Washington v. State,

¶599312 Ga. 495, 499 (1) (863 SE2d 109) (2021); Griffin, 309 Ga. at 864-

¶600866 (2); see also State v. Herrera-Bustamante, 304 Ga. 259, 264 (2)

¶601(b) (818 SE2d 552) (2018) (“We need not analyze all of the elements

¶602of [the plain-error] test when, as in this case, the defendant has

¶603failed to establish one of them.”).

¶604 (b) In a related claim of error, Middlebrooks contends that her

¶605“trial counsel was ineffective in failing to object to the limitation of

¶606Dr. Evan[s]’s testimony by the [f]ederal government and the

¶607[p]rosecutor.” Specifically, she criticizes her counsel’s conduct in

¶608 40 “ultimately consent[ing] to limiting his questions of Dr. Evans.” In

¶609addition, Middlebrooks avers that her “[t]rial counsel expressed

¶610ignorance of the federal rule governing VA testimony,” and she

¶611argues that, “[h]ad he consulted the regulation governing expert

¶612testimony of VA witnesses, he would have seen the procedure that

¶613needed to be followed by either himself or the [c]ourt.” In another

¶614section of her brief, Middlebrooks avers that defense counsel did not

¶615“request the Department of Veterans Affairs to allow Dr. Evans to

¶616testify as an expert. This is even though the factors listed in [the

¶617applicable federal regulation] would have likely been met.” She

¶618contends that “the diagnosis of her mental illness was hampered by

¶619the exclusion of her primary diagnosing physician” and that, as a

¶620result, “[t]he accusation of recent fabrication was left hanging over

¶621the trial.” Middlebrooks contends that “[t]he error of trial counsel

¶622was so prejudicial that it most likely changed the outcome of the

¶623trial.” To prevail on a claim of ineffective assistance of counsel, the

¶624appellant “must show that his lawyer’s performance was

¶625constitutionally deficient and that he suffered prejudice as a result.”

¶626 41 Clark v. State, ___ Ga. ___, ___ (5) (Case No. S22A0950, decided Jan.

¶62718, 2023). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104

¶628SCt 2052, 80 LE2d 674) (1984). If the appellant “fails to prove one

¶629element of this test, we need not address the other element.” Mahdi

¶630v. State, 312 Ga. 466, 468 (2) (863 SE2d 133) (2021) (citation and

¶631punctuation omitted).

¶632 First, Middlebrooks’s claims that her counsel failed to seek

¶633permission from the VA to allow Dr. Evans to testify as an expert

¶634and that he expressed ignorance at trial of the federal rule governing

¶635VA testimony are belied by the record. The representative of the VA

¶636informed the trial court that, in advance of the trial, Middlebrooks’s

¶637counsel requested approval from the VA for Dr. Evans to testify and

¶638that the VA authorized him to testify within boundaries the VA set.

¶639The record shows at most that counsel was caught off guard by the

¶640prosecutor’s initial, later-abandoned objection to Dr. Evans’s

¶641testifying at all if he was not permitted to testify as to his

¶642 42 diagnoses.14

¶643 As to counsel’s agreement not to ask Dr. Evans about his

¶644diagnoses, we consider the second prong of Strickland first. To show

¶645prejudice, the appellant “must show that there is a reasonable

¶646probability that, but for counsel’s unprofessional errors, the result

¶647of the proceeding would have been different. A reasonable

¶648probability is a probability sufficient to undermine confidence in the

¶649outcome.” Strickland, 466 U. S. at 694 (III) (B). Although defense

¶650counsel failed to object to the limitations placed on Dr. Evans’s

¶651testimony, counsel presented two expert witnesses, who testified

¶652about her diagnoses, the severity of her symptoms, and her mental

¶653illness’s effect on her ability to distinguish right from wrong when

¶654she killed Sky. Middlebrooks’s stated need for Dr. Evans’s testimony

¶655 14 In objecting on the basis of relevancy to Dr. Evans being allowed to testify that he had diagnosed Middlebrooks with schizophrenia in 2011 and 2012, the prosecutor argued that, “if he’s not [qualified as] an expert [at trial,] he can’t testify as to a diagnosis [he made in the past], which is the only reason [the defense is] calling him. . . . If he’s not an expert[,] his testimony is meaningless.” Defense counsel responded that “[e]ven lay witnesses can testify just based upon their observations.” The trial court asked both sides, “do y’all have any case law that supports your position?” Defense counsel responded, “I never heard of such an objection so I do not have case law.” 43 was to show that the same mental illness manifested many months

¶656before the crimes, with sufficiently severe symptoms to warrant

¶657extended involuntary hospitalizations, to counteract the State’s

¶658evidence that she was only feigning insanity after the homicide to

¶659avoid criminal liability for Sky’s death. The record shows that

¶660Middlebrooks was able to elicit such testimony from Dr. Evans, even

¶661without asking him to give opinion testimony about his diagnoses,

¶662and to connect her experts’ later diagnoses to Middlebrooks’s

¶663preexisting history of mental illness. 15 In addition, Dr. McKee, one

¶664of Middlebrooks’s expert witnesses, testified extensively about the

¶665 15 At the hearing on Middlebrooks’s motion for a new trial, her trial counsel testified: It was important for me to show this insanity plea was not something that a lawyer made up at the last minute. I wanted to get into her history. I wanted to show why she was in the hospital, how long she was in the hospital, and what kind of treatment she had in the hospital, and what that treatment was generally for. That way I was able to satisfy the VA who did not want [Dr. Evans] to testify as an expert. But I got in all I wanted by showing that he has treated her and she had been diagnosed as psychotic[,] . . . and she was so dangerous that she had to stay in the hospital for . . . a number of weeks. . . . [Dr. Evans’s diagnosis] was not [a key to the defense]. . . . I just wanted to get that she was admitted in the hospital because she was schizophrenic, and I was able to get that in. And she was confined because she was schizophrenic, and I was able to get that in. And she was confined for a good period of time, and I was able to get that in without a diagnosis from Dr. Evans. 44 records he reviewed of Middlebrooks’s 2011 and 2012

¶666hospitalizations, including her reported delusions and the diagnoses

¶667by VA physicians, including Dr. Evans. Given that defense counsel

¶668was able to elicit the desired evidence, Middlebrooks has not shown

¶669a reasonable probability that, but for defense counsel’s allegedly

¶670deficient performance with regard to accepting the limitations on

¶671Dr. Evans’s testimony, the outcome of the trial would have been

¶672different. Accordingly, this claim of error fails. See Hornbuckle v.

¶673State, 300 Ga. 750, 758 (6) (c) (797 SE2d 113) (2017). 16

¶674 Judgment affirmed. All the Justices concur.

¶675 16 Under Georgia law, where alleged errors by the trial court and deficient performance by defense counsel involve evidentiary issues, courts consider collectively the prejudicial effect of those errors in considering whether a criminal defendant is entitled to a new trial. See State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020). For purposes of a cumulative-error analysis in this case, the assumed trial court evidentiary error is the admission of Dr. Vitacco’s testimony about some of the consequences of a verdict of not guilty by reason of insanity, which we have already determined to be harmless, and the assumed deficient performance of counsel is failing to object to the limitation of Dr. Evans’s testimony, which we have already determined did not prejudice Middlebrooks. We have considered the cumulative effect of this presumed evidentiary error and presumed deficient performance of counsel together and conclude that their collective effect is not sufficiently harmful to outweigh the strength of the properly admitted evidence of Middlebrooks’s guilt so as to warrant a new trial. See Perkins v. State, 313 Ga. 885, 904 n.22 (5) (b) (873 SE2d 185) (2022). 45