Perkins v. StatePerkins v. State
Scott Anthony Perkins was found guilty by a jury of multiple counts of aggravated child molestation, aggravated sodomy, and child molestation, plus one count of enticing a child for indecent purposes — all stemming from allegations thаt he committed these offenses against his two minor stepsons. On appeal from the judgment of conviction entered by the trial court, Perkins does not challenge the sufficiency of the evidence to support thе convictions. Perkins seeks a new trial on the basis: (1) that his trial counsel was ineffective because counsel failed to investigate and raise the issue of his mental health and failed to request a jury charge on the issuе of whether he was guilty but mentally ill; (2) that the trial court erred by failing to sua sponte order an evaluation of his mental health and charge the jury that it could render a verdict of guilty but mentally ill; and (3) that the trial court erred by considеring a pre-sentence report that was not made known to him before it was submitted to the trial court. For the following reasons, we find no reversible error and affirm.
1. To prevail on his claim of ineffective assistance,
[Perkins] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington,466 U. S. 668 , 687 (III) (104 SC[t] 2052, 80 LE2d 674) (1984). To show that the performance of his [trial counsel] was deficient, [Perkins] must prove that [counsel] performed h[is] duties at trial in an objeсtively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison,477 U. S. 365 , 381 (II) (C) (106 SC[t] 2574, 91 LE2d 305) (1986). And to show that he was prejudiced by the performance of his [trial counsel], [Perkins] must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland,466 U. S. at 694 (III) (B). See also Williams v. Taylor,529 U. S. 362 , 391 (III) (120 SC[t] 1495, 146 LE2d 389) (2000). This burden, though not impossible to carry, is a heavy one. See Kimmelman,477 U. S. at 382 (II) (C).
Arnold v. State,
Perkins did not assert as a defense at trial that he was not guilty because he was legally insane or otherwise mentally incompetent at the time of the charged offenses (see OCGA §§ 16-3-2; 16-3-3; Perkins v. Hall,
Perkins seeks a new trial on the basis that trial counsel was ineffective because counsel failed to evaluate his mental health. He points out facts known to trial counsel that showed he had been diagnosed prior to the charged offenses with bipolar disorder; that аfter the offenses he told police he “need[ed] help”; and that he had an angry disposition and had been physically and verbally abusive toward the minor victims and his wife. On these facts, Perkins claims that, if counsel had raisеd and investigated evidence that he had a mental health issue, there was a reasonable probability that the result of the trial would have been different because: (1) he would have been entitled to a jury charge on the issue of whether he was guilty but mentally ill; (2) the jury would have reached a verdict of guilty but mentally ill rather than guilty; and (3) on the basis of the guilty but mentally ill verdict, he would have been entitled under OCGA § 17-7-131 (g) (1) to be committed to a penal facility where he could receive treatment for his mental illness.
Under OCGA § 17-7-131 (b) (1), in all felony cases “in which the defense of insanity is interposed,” the jury (or the court in a bench trial) shall find whether the defendant is guilty, not guilty, not guilty by reason of insanity at the time of the crime, guilty but mentally ill at the time of the crime, or guilty but mentally retarded. Moreover,
[i]n all criminal trials in any of the courts of this state wherein an accused shall contend that he was insane or otherwise mentally incompetent under the law at the time the act or acts charged against him 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 mentally retarded.”
OCGA § 17-7-131 (c). Under OCGA § 17-7-131 (a) (2),
“[mjentally ill” means having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. However, the term “mental illness” shall not include a mental state manifested only by repeated unlawful or antisocial conduct.
Accordingly, mental illness less than legal insanity or incоmpetency at the time of the crime is not a defense to the crime. State v. Abernathy,
Under OCGA § 17-7-131, Perkins would have been entitled to a jury charge on whether he was guilty but mentally ill only if he asserted the defense that he was not guilty because he was legally insane or otherwise mentally incompetent at the time of the charged offenses. Accordingly, as to whether trial counsel’s performance was deficient, the issue is whether counsel had information which required him tо investigate and raise whether Perkins was sane at the time of the charged offenses.
In a non-capital case, [as opposed to a death penalty case,] a decision to forego or curtail the investigation of the accused’s mental health is not as likely to be unreasonable. Ordinarily, the lack of investigation into a previous mental hospitalization is reasonable when an expert has determinedthat the defendant is fit to stand trial or that he was sane at the time of the offense. In the absence of such determination, however, where a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance.
Martin v. Barrett,
2. Perkins claims that the trial court erred by failing to sua sponte order a mental health evaluation and instruct the jury that it was entitled to reach a verdict that he was guilty but mentally ill.
As set forth above, under OCGA § 17-7-131, Perkins would have been entitled to a jury charge on the issue of whether he was guilty but mentally ill only where the defense was interposed that he was not guilty by reason of being insane or otherwise mentally incompetent at the time of the charged offenses. Perkins did not raise this defense at trial, and in Division 1, supra, we addressed his claim that trial counsel was ineffective for failing to seek a mental health evaluation to determine whether there was а basis for him to assert an insanity defense. Where evidence of a defendant’s incompetency comes to the trial court’s attention, the court is required to conduct a sua sponte investigation into the defendant’s competency to stand trial (Jackson v. State,
3. Perkins claims that the trial court erred by considering aggravating circumstances in a pre-sentence report becausе the report was not made known to him before it was submitted to the trial court for the sentencing hearing. See Geyer v. State,
Judgment affirmed.