McKELVIN v. State, 305 Ga. 39

Background

In June 2013 Joshua McKelvin shot and killed Marilyn Patterson and wounded three others at a motel; he admitted being the shooter but claimed no memory after two sips of an "odd" tasting beer.
McKelvin was indicted for malice murder, multiple aggravated assaults, and weapons charges; a jury convicted him and the trial court imposed life without parole plus additional terms.
Defense obtained a court-ordered psychological evaluation (filed under seal and provided to defense counsel); the evaluator found McKelvin competent and saw no evidence of involuntary intoxication.
The State moved to compel disclosure of the evaluation and for written pretrial notice of any insanity-type defense; after an ex parte hearing the trial court ordered notice under Uniform Superior Court Rule 31.5 and production of the report.
At trial the defense pursued involuntary intoxication (retained an expert), moved to remove a supposedly sleeping juror, and objected to admission of handwritten rap lyrics found among defendant's possessions.
McKelvin appealed, arguing (inter alia) the court erred in requiring pretrial notice and production of the evaluation, in refusing to excuse a juror and declare a mistrial, and in admitting rap lyrics and allowing evidence that implied prior incarceration.

Issues

Issue	Plaintiff's Argument (McKelvin)	Defendant's Argument (State)	Held
Whether Rule 31.5 required pretrial written notice for an involuntary-intoxication defense	No — involuntary intoxication is distinct and need not be treated as an insanity defense requiring notice	Yes — involuntary intoxication is functionally a subset of insanity and triggers Rule 31.5 notice	Court held notice required: involuntary intoxication is an insanity-type defense and triggers Rule 31.5 notice
Whether trial court erred in ordering turnover of court-ordered psychologist's report	Turnover violated Neuman and attorney-client/expert work-product protections	Report was generated at court direction for the court and not a trial-retained counsel expert, so Neuman does not apply	Court affirmed turnover: Neuman inapplicable because the evaluator acted for the court, not as counsel's retained expert
Whether the court abused discretion by refusing to excuse a juror and declaring mistrial for alleged sleeping	Juror was repeatedly sleeping; excusal (and mistrial) warranted	Observations conflicted; juror took notes and court counseled him; discretionary to retain juror	Court found no abuse of discretion in retaining juror and denying mistrial
Whether admission of rap lyrics and testimony implying they were on an inmate form unfairly placed character at issue or required mistrial	Lyrics irrelevant and improper character evidence; mention of inmate form suggested prior incarceration and warranted mistrial	Connection between lyrics and McKelvin was tenuous; any reference to inmate form was truncated and, if heard, a passing mention harmless in light of overwhelming evidence	Any error was harmless; admission and brief reference did not require reversal or mistrial

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
Foster v. State, 258 Ga. 736 (1988) (involuntary intoxication construed in light of insanity statute)
Neuman v. State, 297 Ga. 501 (2015) (attorney-retained expert communications protected unless expert will testify or inform other experts)
Crossley v. State, 261 Ga. App. 250 (2003) (involuntary intoxication characterized as temporary insanity)
Rauschenberg v. State, 161 Ga. App. 331 (1982) (defendant presumed sane; burden to show inability to distinguish right from wrong)
Smith v. State, 298 Ga. 357 (2016) (trial court discretion to replace juror with alternate)
Clements v. State, 288 Ga. 640 (2011) (abuse-of-discretion standard for juror-replacement decisions)
Rivera v. State, 295 Ga. 380 (2014) (harmless-error standard where evidence of guilt overwhelming)
Jordan v. State, 303 Ga. 709 (2018) (passing reference to prior incarceration does not place character in evidence)