Middlebrooks v. State ( 2023 )

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
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official text of the opinion.
In the Supreme Court of Georgia
Decided: February 21, 2023
S22A1328. MIDDLEBROOKS v. THE STATE.
ELLINGTON, Justice.
After Marina Middlebrooks pleaded not guilty by reason of
insanity to charges arising from the stabbing death of her daughter,
Sky Allen, a jury found Middlebrooks guilty of murder and cruelty
to children in the first degree.1 On appeal, Middlebrooks contends
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
testify as to what happens when a person is found not guilty by
reason of insanity. In addition, Middlebrooks contends that “[t]he
trial court erred in restricting the testimony of [her] diagnosing
psychiatrist,” an employee of the Department of Veterans’ Affairs
(“VA”), “without following the correct procedure” under federal
regulations concerning the testimony of VA personnel in legal
proceedings. In a related claim, Middlebrooks contends that her
“trial counsel was ineffective in failing to object to the limitation of
[the witness’s] testimony by the [f]ederal [g]overnment and the
[p]rosecutor.” For the reasons explained below, we affirm.
After indictment in Columbia County, where Sky’s dead body
was discovered, the case was transferred to and re-indicted in
Richmond County, based on Middlebrooks’s pretrial statements that
placed the alleged criminal acts outside her Richmond County home.
Middlebrooks filed a notice of intent to raise the issue that she was
insane at the time of the acts charged against her. Before the trial
began, the State and Middlebrooks entered into a stipulation that,
2
“[o]n May the 2nd, 2013, the Defendant, Marina Mae Middlebrooks,
acting alone, caused the death of Sky Lyric Allen, by stabbing her in
the neck. This act occurred in Richmond County, Georgia.” Because
the parties stipulated that Middlebrooks killed her daughter, the
primary issue the jury had to decide was Middlebrooks’s mental
capacity at the time she committed the crimes, with the possible
verdicts being not guilty, not guilty by reason of insanity, guilty but
mentally ill, or guilty. 2 The jury was required to return a verdict of
not guilty by reason of insanity if the jury found beyond a reasonable
doubt that Middlebrooks committed the crimes charged in the
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.
3
indictment and also found by a preponderance of the evidence that
she was legally insane at that time, that is, she did not have the
mental capacity to distinguish between right and wrong in relation
to the act.3 At the beginning of trial, the trial court read the parties’
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
stipulations that had been entered into, Middlebrooks’s “plea of not
guilty by reason of insanity frame[d] the issue that [the jury was]
sworn and empaneled to try in this particular case.”
The State presented the testimony of investigators and other
witnesses as to the circumstances of the crimes. That uncontested
evidence showed that, on May 2, 2013, a passerby saw
Middlebrooks’s car swerve out of its lane on Ray Owens Road in
Columbia County and then crash into a tree. The witness called 911.
First responders found Middlebrooks in the driver’s seat. She was
nude except for a sweatshirt and covered in blood. One first
responder testified that Middlebrooks “did not appear to be fully
conscious.” Middlebrooks told the first responders that “someone
had done something” to her, but provided no details. To most of the
first responders’ questions about what had happened to her, she
answered, “I don’t know. I don’t remember.” While tending to
Middlebrooks, first responders found her two-year-old daughter,
Sky, dead on the car’s rear floor, underneath a pile of clothes. Sky
5
was also unclothed, covered in dried blood, and had a gaping stab
wound to her neck. Her body had already cooled. A bloody pair of
scissors lay in the front passenger seat. A medical examiner later
determined that Sky had suffered multiple stab wounds, one of
which severed a jugular vein, resulting in fatal blood loss. The
wounds were consistent with having been created by the sharp edges
of an opened pair of scissors. Middlebrooks had multiple puncture
wounds and lacerations to her neck, face, chest, arms, wrists, and
knee. Her neck wounds were severe enough to require intubation for
a few days.
After the State presented evidence of the circumstances of the
crimes, Middlebrooks called several witnesses in support of her
insanity defense. After being qualified as an expert, Dr. Geoffrey
McKee, a board-certified criminal forensic psychologist, testified
that he evaluated Middlebrooks in October 2014, when he spent 6
hours, 25 minutes with her, and February 2016, when he spent an
hour with her. In addition to administering psychological tests and
interviewing Middlebrooks, Dr. McKee reviewed records of previous
6
evaluations and treatment of Middlebrooks, including a four-week
hospitalization at the VA hospital in the summer of 2011, when she
was diagnosed with “schizophreniform disorder” and with “post
traumatic stress disorder,” arising from her 13 months in combat
zones in Iraq. Dr. McKee testified that Middlebrooks was readmitted
to the VA hospital for two weeks in February 2012 and diagnosed
with “schizophrenia continuous, meaning that the symptoms were
recurring on a . . . near daily basis,” and “schizophrenia paranoid
type, which means that she had delusions of persecution, feelings
that other people would hurt her even though there was no evidence
of that.” For example, the records showed that Middlebrooks
reported believing that other people wanted her to kill herself. Dr.
McKee also reviewed the records from Middlebrooks’s five-day
hospitalization following her arrest for Sky’s death and her
hospitalization at East Central Regional Hospital in Augusta that
began seven weeks after Sky’s death and lasted for about six weeks.
In reviewing the records of the VA hospitalizations and the post-
arrest hospitalizations, Dr. McKee looked for any indication in those
7
records that Middlebrooks was “malingering” – faking her
symptoms – and he found none.
Dr. McKee testified about his own examinations of
Middlebrooks and described some of the fixed delusions she
reported, such as that “she could control and slow down time by
moving her hands in a particular way.” Dr. McKee testified that
Middlebrooks reported that, just before the crimes, she stripped
herself and her daughter naked, even removing their earrings,
“because she believed that to get to heaven she and her daughter
would have to die” by their own hands, “but that they had to be
naked because the clothes, including any jewelry, would block the
spirits from leaving” their bodies. Dr. McKee administered several
psychological tests to Middlebrooks, some of which are designed to
detect malingering, and he found no evidence of malingering during
the course of his own evaluation. Dr. McKee testified that
“[c]ommand auditory hallucinations are not uncommon in persons
with schizophrenia, but often with people who try to malinger
schizophrenia, when they are charged with a crime will tell the
8
examiner that they had a command auditory hallucination” ordering
them to commit the particular crime. Dr. McKee found it a
significant indication that Middlebrooks was not malingering that,
according to the records from her hospitalization in the days after
the crimes, she “did not seize upon [a command hallucination] as a
way of explaining away all that she had done.” Based on
Middlebrooks’s history and his own evaluation, Dr. McKee
diagnosed her with paranoid schizophrenia. In Dr. McKee’s opinion,
at the time of the crimes, Middlebrooks “suffered from
schizophrenia, a serious psychiatric disorder[,]” that “as a result of
that disorder she did not have the mental capacity to know right
from wrong[,]” and that “the delusional component of that . . .
disorder overmaster[ed] her will to resist committing her offenses.”
Dr. McKee testified that, in his more than 40-year career, he had
evaluated more than 40 women who had killed one or more of their
own children. Out of those 40 cases, Dr. McKee had found that only
4 of those mothers, including Middlebrooks, were insane.
Dr. Donna Schwartz-Watts, the chief psychiatrist for female
9
patients at Patrick B. Harris Psychiatric Hospital in Anderson,
South Carolina, also testified as an expert witness. Dr. Schwartz-
Watts evaluated Middlebrooks in February 2014, when she spent
“over two hours” with her, and “saw her again a period of time later.”
Like Dr. McKee, Dr. Schwartz-Watts reviewed records of
Middlebrooks’s previous mental health treatment, including just
after she killed Sky. Dr. Schwartz-Watts also reviewed statements
by witnesses to the crash, Middlebrooks’s emergency treatment, and
her arrest; examined detention records; and interviewed
Middlebrooks’s mother and other witnesses. She found that
Middlebrooks exhibited a common symptom of schizophrenia, a type
of delusion called “ideas of reference,” and a very rare symptom,
called “clanging.” She explained that, rather than expressing
thoughts that were connected rationally, Middlebrooks would say
words in a sequence that were related to each other only by “the
sound of the words.” Dr. Schwartz-Watts described clanging as “one
of the most severe and regressed forms of thought process, of
connecting thoughts together,” and testified that it is a difficult
10
symptom to fake. In Dr. Schwartz-Watts’s opinion, Middlebrooks’s
notes and drawings when she was intubated in the days after the
crimes revealed signs of paranoid and delusional thinking. Dr.
Schwartz-Watts testified that Middlebrooks reported that, in the
days before she killed Sky, she was having recurrent delusional
thoughts and compulsions that she and Sky “each had to commit
suicide.” Middlebrooks said that she believed that God had given her
and Sky a “green aura” that made them “special and unique” and
that she and her daughter were being “persecuted” by people who
“would mean them harm” because “they would want to have access
to that gift[.]” Middlebrooks told Dr. Schwartz-Watts that, by
committing suicide, she and Sky would “go to heaven so that they
would be safe.” Dr. Schwartz-Watts testified that “morally
[Middlebrooks] believed that she was doing God’s will” and that, for
Sky to go to heaven, “[Sky] had to kill herself. [Middlebrooks] could
not kill her daughter. So she took the scissors and had her daughter
stab herself, helping her with the scissors. She stabbed her daughter
thinking it’s the daughter’s hand[.]” Then Middlebrooks stabbed
11
herself and started driving to the marina, where she planned to
finish killing herself. Middlebrooks explained to Dr. Schwartz-Watts
that she was not completely naked when she crashed into the tree,
because she put on a sweater after seeing a police officer stop
another car and she did not want the police to stop her and prevent
her from reaching the marina and completing her suicide. Based on
Middlebrooks’s history of paranoid delusions and hallucinations, her
psychotic behavior around the time of the crimes, and psychotic
thinking that Dr. Schwartz-Watts personally observed during her
evaluation sessions, she diagnosed Middlebrooks with acute
schizophrenia. In Dr. Schwartz-Watts’s opinion, at the time of the
offense, Middlebrooks did not “recognize[e] what she was doing was
wrong,” but thought “she was doing the right thing” when she killed
Sky.
Dr. Donald Evans, a staff psychiatrist at the VA Medical
Center in Augusta, testified about Middlebrooks’s two prior
12
hospitalizations in that facility. 4 He testified that in July 2011,
Middlebrooks, an Iraq War veteran, “was admitted in a psychotic
state, meaning, her reality was so distorted that she couldn’t trust
her senses.” That hospitalization lasted approximately four weeks.
During that time, Dr. Evans testified, Middlebrooks expressed that
“[s]he was disturbed by what she described as people knowing what
thoughts were in her head, putting thoughts in her head, or taking
some of those thoughts out. And then she had some paranoid ideas
that people were going to hurt her, and her physiology reflected
that.” Middlebrooks was placed on antipsychotic medication that
was “meant to help return thinking to cohesive functioning” and
“quiet down” distorted thinking in the form of hallucinations or
delusions. Dr. Evans read from a progress note in Middlebrooks’s
chart, showing that the medications were given to treat
“schizophreniform,” and he explained that “[s]chizophreniform is a
diagnosis for a disturbance of perceptions that last for a period of
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
beyond six months then it becomes schizophrenia, and both of those
conditions I diagnosed.”
Middlebrooks’s mother and father testified about their
daughter’s mental breakdown in 2012, which resulted in the second
hospitalization at the VA Hospital in Augusta. They found
Middlebrooks walking aimlessly down the middle of a busy street,
and she could not answer where she was going. When her father was
driving her home, she tried to jump out of his truck. She told her
father that he was the devil or “something evil” and screamed “don’t
kill me.” Middlebrooks’s father testified that, after Middlebrooks
returned from combat service in Iraq, she had changed – her face
was “blank,” she “start[ed] forgetting things,” her “patience [was]
shot,” and, when he looked in her eyes, “something was missing,
something was gone.” Middlebrooks sometimes told her mother that
she was hearing voices. In the weeks before Sky’s death,
Middlebrooks’s mother thought that Middlebrooks seemed
withdrawn and that something was wrong with her. Middlebrooks’s
14
sister and brother-in-law testified, describing several incidents of
Middlebrooks’s “belligerent” and bizarre behavior in the years
between her return from Iraq in 2006 and Sky’s death in 2013,
including having loud arguments with herself and accusing
strangers of “talking bad about her and looking at her funny.” In
early 2013, Middlebrooks told her sister that VA doctors diagnosed
her with schizophrenia. Middlebrooks did not testify.
The State presented the testimony of Middlebrooks’s cellmate
at the Columbia County jail in November 2014, Kala Stewart, as to
statements Middlebrooks made while awaiting trial. Stewart
testified that Middlebrooks told her that “she killed her child before
she left the house, her driveway,” and “she did it out of spite of her
boyfriend.” Stewart testified that Middlebrooks told her that “her
lawyer was going for mental illness” as a defense, but Middlebrooks
told Stewart that “she [was not] mentally ill.” Middlebrooks told
Stewart that she did not think her case was going well.
In addition, the State presented expert testimony to rebut the
testimony of Middlebrooks’s expert witnesses that they found no
15
evidence of malingering, either in Middlebrooks’s past mental
health records or in their own evaluations. Dr. Michael Vitacco, after
being qualified as an expert in forensic psychology, testified that he
evaluated Middlebrooks at the East Central Regional Hospital,
where he serves as a licensed clinical psychologist, over the course
of 40 days in June and July 2013, beginning seven weeks after Sky’s
death. In addition to formally interviewing Middlebrooks three
times and giving her psychological tests, meetings lasting a total of
3 hours and 20 minutes, Dr. Vitacco spoke with her briefly
approximately 20 times over her 40-day stay. He also communicated
with her treating psychiatrist and other caregivers who interacted
with Middlebrooks for extended periods daily. After Middlebrooks
returned to the jail, he and a colleague prepared a Criminal
Responsibility Evaluation report and a Competency to Stand Trial
Evaluation report.
In Dr. Vitacco’s opinion, other practitioners’ diagnosis of
schizophrenia was not supported by the evidence, one reason being
that the records showed that Middlebrooks’s symptoms improved
16
during each hospitalization much more quickly than would typically
happen in cases of acute schizophrenia. Dr. Vitacco testified that,
during interviews with him, Middlebrooks reported hearing voices
and behaved consistently with that symptom, but she would behave
“quite differently,” appearing to be unaffected by hallucinations,
when she was “away from the people who were interviewing her.”
Dr. Vitacco noted that, according to Middlebrooks’s mental health
records, she reported paranoid delusions that “people were out to get
her,” but “at no point” before she killed Sky “did she endorse a
delusion consistent with killing her child.” He also found it
significant that Middlebrooks never reported any religious delusions
until after she killed Sky and was being evaluated for criminal
responsibility, at which point she reported a religious delusion that
she was on a mission from God to help Sky go to heaven. Dr. Vitacco
testified that Middlebrooks’s description of the events “changed
dramatically” and evolved from telling first responders that she had
no recollection of the entire event, to telling detectives that nothing
happened and Sky was still alive, and then, “[f]ast forward just eight
17
weeks and she had a perfect recollection, once she arrived at the
hospital, of everything that happened in that car, including being
able to describe the last minutes of her daughter’s life.” Dr. Vitacco
believed that, after being given the Structured Interview of Reported
Symptoms test, Middlebrooks falsely reported a version of some of
the specific hallucinations that were questions on the test. He
testified that she reported “a slew of new symptoms” after she killed
Sky, “each one self-serving to justify the death of her daughter[,]”
but she did not display the behavioral “signs” of someone
experiencing the reported symptoms. Staff members saw
Middlebrooks “greeting [other patients] warmly” and laughing with
them – she was even “voted vice-president of [her] unit because her
peers liked her so much” – and she followed hospital rules and
behaved appropriately in classes and group sessions. Dr. Vitacco
testified that, “on several occasions[,]” after a class or group,
Middlebrooks “would approach the group leader” and ask “specific
questions about the insanity defense” and “how . . . one go[es] about
it.” During the last week of her 40-day stay at the hospital,
18
Middlebrooks told her treating psychiatrist that she was “feeling
hopeful . . . about the possibility of building an NGRI case.”
Dr. Vitacco defined malingering as “the intentional production
of symptoms in order to basically get out of something,” such as, in
the criminal justice context, “to get out of going to prison or going to
trial.” After reviewing evidence about Middlebrooks’s behavior in
the few days surrounding Sky’s death, including a videotaped police
interview, reviewing the VA records, personally interviewing and
observing Middlebrooks, and administering tests designed, in part,
to detect malingering, Dr. Vitacco concluded that Middlebrooks was
“retrospectively malingering,” that is, feigning having had
symptoms at the time of Sky’s death in order to avoid criminal
responsibility for the death of her daughter.
Based on the totality of the evidence Dr. Vitacco reviewed, his
professional opinion was that, “when [Middlebrooks] killed her
daughter[,]” she “was not mentally ill[;]” specifically, she was not
“psychotic” or suffering from “schizophrenia[,]” which is a “thought
disorder.” Dr. Vitacco testified that Middlebrooks was diagnosed,
19
during her hospitalization at East Central Regional Hospital, with
post-traumatic stress disorder and with “a series of personality
disorders[,]” which are “maladaptive traits” that are “not considered
. . . disorder[s] of thought or mood that substantially impair[ ] one’s
judgment, one’s behavior, one’s ability to recognize reality[.]” In
terms of personality disorders, Dr. Vitacco testified that
Middlebrooks was diagnosed with “borderline personality disorder”
and “adjustment disorder.” Despite these diagnoses, in Dr. Vitacco’s
expert opinion, when Middlebrooks killed her daughter, “she was
very aware of right from wrong” and “was very aware that murder
was against the law, both morally wrong and legally wrong.” He
testified that he did not believe that Middlebrooks “was experiencing
a delusional compulsion that overmastered her will” at the time of
the crime and that, even if he did believe her, the nature of the
delusion she reported would not have justified the act of killing her
daughter. In Dr. Vitacco’s opinion, Middlebrooks was simply “angry
and she took it out on her two-year-old child.” Asked if he had “any
personal stake in the outcome of this case,” Dr. Vitacco replied that
20
he had no personal stake in the case and described himself as “a
state employee and a psychologist” who was not “paid by the
prosecution or the defense” and was “simply a [j]udge’s witness.”
At the end of Dr. Vitacco’s direct testimony, the prosecutor
asked him “what happens when a person is found not guilty by
reason of insanity?” Defense counsel did not object before Dr. Vitacco
responded that the person “would come to our hospital for a period
of 30 days. And then we would evaluate that individual . . . to
determine if they were mentally ill . . . and dangerous to themselves
or others. And then we would have a hearing in 30 days to determine
if they could be released[, as required by] state law[.]” The
prosecutor asked, “[b]y law, if that person is not a danger to themself
or others and is not suffering from a mental illness, what is the
[c]ourt obligated to do?” Dr. Vitacco answered, “[A]ccording to the
Supreme Court[, the trial court would] be obligated to release that
individual.” Middlebrooks’s counsel objected to “this man giving a
legal opinion” and moved to strike the testimony, arguing that
“Georgia law tells us what the law is. [Such a person does not] get
21
out until you say they get out. . . . [T]he [j]udge gives the law . . . not
the State’s witness.” The trial court overruled the objection and
declined to strike the testimony.
1. Middlebrooks contends that the trial court abused its
discretion in overruling her objection to Dr. Vitacco’s testimony
about what happens after a jury finds a criminal defendant not
guilty by reason of insanity and in denying her motion to strike the
testimony. She contends that the testimony constituted improper
legal opinion testimony and that the law should have come only from
the judge. In addition, Middlebrooks argues that Dr. Vitacco’s
testimony paraphrased parts of OCGA § 17-7-131, pertaining to
evaluation and commitment following a verdict of not guilty by
reason of insanity, information that should not have been conveyed
to the jury, and that his paraphrase was incomplete and misleading.
Middlebrooks argues that Dr. Vitacco’s reference to those
aspects of the law was especially harmful because he described
himself as the “[j]udge’s witness” and because he implied that he
personally would be evaluating her after verdict. Because Dr.
22
Vitacco had testified that he had already found that Middlebrooks
was merely malingering and not mentally ill, Middlebrooks
contends that the testimony improperly encouraged the jury to
believe that, if the jury returned a verdict of not guilty by reason of
insanity, the trial court would have no choice but to release her
immediately after a 30-day post-trial evaluation. And she argues
that the trial court’s instruction about the consequences of a verdict
of not guilty by reason of insanity did not correct and override Dr.
Vitacco’s misleading paraphrase of OCGA § 17-7-131, because the
court’s instruction did not directly contradict Dr. Vitacco’s statement
and could be understood by the jury as complementary with that
testimony. She also argues that the trial court’s instruction that the
jury is not to concern itself with punishment did not alleviate the
harm caused by the statement because commitment after a not
guilty by reason of insanity verdict is not in the nature of
punishment and therefore the instruction about the jury not
concerning itself with punishment did not apply.
When an accused pleads not guilty by reason of insanity at the
23
time of the crime, the Criminal Procedure Code requires the trial
court to instruct the jury in specific and limited terms regarding the
consequences of each potential verdict. 5 See OCGA § 17-7-131 (b) (3).
One of these instructions is that, “should you find the defendant not
guilty by reason of insanity at the time of the crime, the defendant
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.
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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.” OCGA § 17-7-131 (b) (3) (A).6 See Foster v. State,
306 Ga. 587, 590-592 (2) (a) (832 SE2d 346) (2019).
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
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.
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.
Id. at 593 (2) (b) (citation and punctuation omitted).
In this case, Dr. Vitacco introduced aspects of the consequences
of a verdict of not guilty by reason of insanity that appear in parts
of OCGA § 17-7-131 and the statutory criteria for involuntary civil
commitment 7 that are not pertinent to the issues to be decided by
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:
26
the jury. See OCGA § 17-7-131 (b) (1). And he did so in a way that
could have been misleading. Specifically, Dr. Vitacco referred to an
evaluation at “our hospital,” while the statute provides that a person
found not guilty of a crime by reason of insanity would be detained
at a state mental health facility chosen by the Department of
Behavioral Health and Developmental Disabilities. See OCGA § 17-
7-131 (d). More importantly, his statement that, after 30 days’
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).
27
evaluation, “we would have a hearing” to determine whether the
person was legally entitled to be released obscured the fact that the
trial court would “retain jurisdiction” over Middlebrooks, OCGA §
17-7-131 (d), 8 and that she could only be discharged from
involuntary commitment by order of the trial court in accordance
with procedures specified in the Code section. See OCGA § 17-7-131
(f).9
See also OCGA § 17-7-131 (e) (4) (If, after the 30-day evaluation of the
8
defendant’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:
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
28
Closing arguments were not transcribed, and we cannot
discern whether either side’s argument clarified Dr. Vitacco’s
response to the question.10 By the same token, we cannot assume
that the prosecutor’s argument amplified the implication that
within a short period the trial court might be obligated to order that
Middlebrooks be released. In the trial court’s final charge to the jury,
the court instructed the jury as required by OCGA § 17-7-131 (b) (3)
regarding the consequences of each of the possible verdicts,
including that, if the jury should find Middlebrooks not guilty by
reason of insanity, she would be committed until such time, if ever,
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
counsel 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.
The trial court’s jury charge did not address the 30-day evaluation
procedure under OCGA § 17-7-131 (d) and the statutory criteria for
involuntary civil commitment that Dr. Vitacco referenced.
We can see that Dr. Vitacco’s testimony about the
consequences of a verdict of not guilty by reason of insanity, if
credited by jurors as a correct statement of applicable law, could
have reinforced, rather than corrected, any misconceptions jurors
may have had that only a guilty verdict would prevent
Middlebrooks’s nearly immediate release. If taken in this light, Dr.
Vitacco’s testimony undermined an essential purpose of OCGA § 17-
7-131. See Foster, 306 Ga. at 593 (2) (b). Given the narrow focus of
the statutorily prescribed jury instructions, the State should not
have elicited such extraneous testimony. Assuming the trial court
erred in allowing the testimony to stand, we must consider whether
the error was harmless to determine if a new trial is warranted. See
Jones v. State, 315 Ga. 117, 123 (4) (880 SE2d 509) (2022)
(“Erroneous evidentiary rulings are subject to a harmless-error
30
test.”). The harmless-error test applicable in this case is that for
nonconstitutional error.
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.
Id. (citations and punctuation omitted); Johnson v. State, 238 Ga.
59, 61 (230 SE2d 869) (1976) (discussing and adopting the highly-
probable test for nonconstitutional errors). 11
Middlebrooks’s burden in asserting the insanity defense was to
prove by a preponderance of the evidence that she was mentally
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 self-
incrimination); 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
particular acts charged. See Bowman v. State, 306 Ga. 97, 100 (1) (c)
(829 SE2d 139) (2019). As recounted above, opinion evidence given
by Drs. McKee and Schartz-Watts supported a finding that
Middlebrooks’s mental illness of acute schizophrenia with delusions
rendered her incapable of distinguishing between right and wrong
with regard to killing Sky. On the other hand, Dr. Vitacco’s opinion
evidence supported the contrary finding that Middlebrooks was
mentally capable of distinguishing between right and wrong
regarding the act of fatally stabbing her daughter. His testimony
included detailed descriptions of the distinctions between disorders
of thought – disorders, such as schizophrenia, that may rob a person
of the mental capacity to distinguish right from wrong at the time of
a criminal offense – and other mental health conditions that do not
typically have that effect. Dr. Vitacco’s expert opinion that
Middlebrooks did not have a mentally incapacitating thought
disorder when she fatally stabbed Sky was based in part on his
personal observation that Middlebrooks’s behavior was often
32
inconsistent with the symptoms she reported. In addition, he
testified that he learned from hospital staff members that
Middlebrooks actively sought information about how to “go about”
and “build” an insanity defense. The evidence that Dr. Vitacco
formed his opinions after interacting with and observing
Middlebrooks much closer in time to the crimes and on many more
occasions than had Drs. McKee and Schwartz-Watts is a factor in
assessing the weight of Dr. Vitacco’s expert opinion that
Middlebrooks was faking mental illness to avoid criminal
responsibility for killing her daughter. Another factor is evidence,
introduced through the testimony of Middlebrooks’s cellmate, that
Middlebrooks denied being mentally ill, despite her lawyer’s plan to
present a mental illness defense, and admitted that she killed her
daughter out of spite.
The State’s burden under the applicable harmless-error test –
showing that “it is highly probable that the error did not contribute
to the verdict” – is a heavy one. Even so, to overturn the jury’s
verdicts on the basis of Dr. Vitacco’s improper testimony, there must
33
be more than a theoretical possibility that the error contributed to
the verdicts. In assessing nonconstitutional error, we do not look to
a single aspect of Dr. Vitacco’s testimony, divorced from the context
of the entire trial. We consider all of the evidence, and we weigh the
evidence as we would expect reasonable jurors to have done. See
Jones, 315 Ga. at 122 (4). 12 Having reviewed all of the evidence de
novo and weighed it as we would expect reasonable jurors to have
done, we conclude that it is highly likely that Dr. Vitacco’s brief
testimony about the general consequences of a verdict of not guilty
by reason of insanity was not an important factor for the jury
compared to the substantial evidence that Middlebrooks had the
mental capacity to distinguish right from wrong in killing Sky.
Because it is highly probable that the trial court’s ruling on
Middlebrooks’s objection and motion to strike the testimony did not
contribute to the verdict, a new trial is not warranted. See Brookins
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).
2. (a) Middlebrooks contends that “the trial court erred in
restricting” Dr. Evans’s testimony to non-expert matters “without
following the correct procedure” under federal regulations
concerning the testimony of VA personnel in legal proceedings. 13
This claim fails because Middlebrooks failed to preserve any error
in this regard for ordinary appellate review and she failed to show
plain error.
The record shows that, at the beginning of Middlebrooks’s
presentation of evidence, an assistant United States Attorney
accompanied Dr. Evans to court and advised the trial court that
federal law required approval from the federal government anytime
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
attorney reported that, after defense counsel requested that Dr.
Evans testify, the VA Office of General Counsel authorized him to
testify within boundaries, specifically that Dr. Evans could testify
about his personal observations of Middlebrooks, about
conversations he had with her, and about the contents of her medical
records, but he could not serve as an expert witness or answer
hypothetical questions. The prosecutor then argued that, “if [Dr.
Evans] can’t testify as an expert witness[,] then he can’t render an
opinion as to his diagnosis [of Middlebrooks] back in 2011 and 2012.”
Initially, the prosecutor framed an objection based on relevance,
asserting, if Dr. Evans could not give expert opinion testimony, then
none of his testimony would be relevant. Defense counsel stated that
he would not be asking for “a present diagnosis,” but for “a historical
diagnosis,” and argued that such testimony would not constitute
expert testimony.
In the ensuing colloquy among the trial court and counsel, the
court asked if defense counsel had any legal authority “that
36
support[ed] what [the defense] wanted to go into [during his
examination of Dr. Evans] based on the restrictions that have been
placed on [his] testimony.” Defense counsel responded that he
intended to ask Dr. Evans about “the nature of [Middlebrooks’s]
hospitalization[,] . . . why she was in the hospital[,] . . . how long she
was in the hospital, and whether or not she was confined in the
hospital.” After a recess, defense counsel, “in an effort to compromise
this issue[,] . . . agree[d] not to ask [Dr. Evans] about his diagnosis”
of Middlebrooks. Defense counsel described Dr. Evans as an
“essential” witness, because he had been Middlebrooks’s caretaker
in the VA mental hospital twice in the years before this crime
occurred[,]” and argued that if he was prohibited from testifying
Middlebrooks would be “deprived of the right of compulsory process
and [her] constitutional rights under both the State and Federal
constitution[s], [her] Sixth Amendment rights.” Softening the
State’s earlier position, the prosecutor stated, “I’m not objecting to
him testifying.” The trial judge stated, “I’m not going to . . . prohibit
him from testifying, but based on restrictions that are in place it
37
does not appear that he can render a diagnosis.” Defense counsel
responded, “I understand.” The prosecutor advised that he would
object “based on [a lack of] foundation” to any question “that call[ed]
for an opinion[,] . . . including the diagnosis[,]” because such an
opinion could only “be rendered by an expert[.]” Defense counsel
responded, “[w]e can handle that,” the court summoned the jury, and
Dr. Evans took the stand.
Assuming without deciding that the trial court affirmatively
ruled that Dr. Evans was prohibited from “render[ing] a diagnosis,”
the record establishes that the defense ultimately withdrew any
challenge to such ruling. Without preservation of error as provided
in OCGA § 24-1-103, we review an evidentiary ruling only for plain
error pursuant to OCGA § 24-1-103 (d). See Ellington v. State, 314
Ga. 335, 343 (3) (877 SE2d 221) (2022); Lofton v. State, 309 Ga. 349,
358 (4) (846 SE2d 57) (2020); Martin v. State, 306 Ga. 747, 749 (2)
(833 SE2d 122) (2019). To establish plain error, Middlebrooks “must
point to an error that was not affirmatively waived,” and that “error
must have been clear and not open to reasonable dispute, must have
38
affected [her] substantial rights, and must have seriously affected
the fairness, integrity or public reputation of judicial proceedings.”
Ellington, 314 Ga. at 343 (3) (citation, punctuation, and footnote
omitted).
“For purposes of plain error review, an affirmative waiver is
the intentional relinquishment or abandonment of a known right.”
Griffin v. State, 309 Ga. 860, 865 (2) (849 SE2d 191) (2020) (citation
and punctuation omitted). The record shows that the defense
invoked known rights, then proposed a resolution to the parties’
evidentiary dispute that involved voluntarily curtailing
Middlebrooks’s assertion of those rights. The transcript of the
colloquy before Dr. Evans testified shows that defense counsel opted
to proceed with Dr. Evans’s testimony, with the latitude to question
him, without drawing an objection by the State, about the facts of
Middlebrooks’s hospitalizations with the sole limitation that he
could not elicit testimony that Dr. Evans had diagnosed
Middlebrooks with schizophrenia – an opinion that was reflected in
the medical records and referenced in the testimony of
39
Middlebrooks’s two expert witnesses. In addition, at the hearing on
Middlebrooks’s motion for a new trial, her trial counsel testified that
he had previous experience with “forcing an expert witness who did
not want to appear” as an expert to testify, that witness “made [him]
‘wish’” he had not compelled the witness to testify, and he “didn’t
want to have that situation with Dr. Evans.” Thus, Middlebrooks
intentionally relinquished any claim that the trial court erred in
limiting the scope of Dr. Evans’s testimony, and this claim of error
fails at the first stage of plain-error review. See Washington v. State,
312 Ga. 495, 499 (1) (863 SE2d 109) (2021); Griffin, 309 Ga. at 864-
866 (2); see also State v. Herrera-Bustamante, 304 Ga. 259, 264 (2)
(b) (818 SE2d 552) (2018) (“We need not analyze all of the elements
of [the plain-error] test when, as in this case, the defendant has
failed to establish one of them.”).
(b) In a related claim of error, Middlebrooks contends that her
“trial counsel was ineffective in failing to object to the limitation of
Dr. Evan[s]’s testimony by the [f]ederal government and the
[p]rosecutor.” Specifically, she criticizes her counsel’s conduct in
40
“ultimately consent[ing] to limiting his questions of Dr. Evans.” In
addition, Middlebrooks avers that her “[t]rial counsel expressed
ignorance of the federal rule governing VA testimony,” and she
argues that, “[h]ad he consulted the regulation governing expert
testimony of VA witnesses, he would have seen the procedure that
needed to be followed by either himself or the [c]ourt.” In another
section of her brief, Middlebrooks avers that defense counsel did not
“request the Department of Veterans Affairs to allow Dr. Evans to
testify as an expert. This is even though the factors listed in [the
applicable federal regulation] would have likely been met.” She
contends that “the diagnosis of her mental illness was hampered by
the exclusion of her primary diagnosing physician” and that, as a
result, “[t]he accusation of recent fabrication was left hanging over
the trial.” Middlebrooks contends that “[t]he error of trial counsel
was so prejudicial that it most likely changed the outcome of the
trial.” To prevail on a claim of ineffective assistance of counsel, the
appellant “must show that his lawyer’s performance was
constitutionally deficient and that he suffered prejudice as a result.”
41
Clark v. State, ___ Ga. ___, ___ (5) (Case No. S22A0950, decided Jan.
18, 2023). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984). If the appellant “fails to prove one
element of this test, we need not address the other element.” Mahdi
v. State, 312 Ga. 466, 468 (2) (863 SE2d 133) (2021) (citation and
punctuation omitted).
First, Middlebrooks’s claims that her counsel failed to seek
permission from the VA to allow Dr. Evans to testify as an expert
and that he expressed ignorance at trial of the federal rule governing
VA testimony are belied by the record. The representative of the VA
informed the trial court that, in advance of the trial, Middlebrooks’s
counsel requested approval from the VA for Dr. Evans to testify and
that the VA authorized him to testify within boundaries the VA set.
The record shows at most that counsel was caught off guard by the
prosecutor’s initial, later-abandoned objection to Dr. Evans’s
testifying at all if he was not permitted to testify as to his
42
diagnoses.14
As to counsel’s agreement not to ask Dr. Evans about his
diagnoses, we consider the second prong of Strickland first. To show
prejudice, the appellant “must show that there is 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). Although defense
counsel failed to object to the limitations placed on Dr. Evans’s
testimony, counsel presented two expert witnesses, who testified
about her diagnoses, the severity of her symptoms, and her mental
illness’s effect on her ability to distinguish right from wrong when
she killed Sky. Middlebrooks’s stated need for Dr. Evans’s testimony
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
before the crimes, with sufficiently severe symptoms to warrant
extended involuntary hospitalizations, to counteract the State’s
evidence that she was only feigning insanity after the homicide to
avoid criminal liability for Sky’s death. The record shows that
Middlebrooks was able to elicit such testimony from Dr. Evans, even
without asking him to give opinion testimony about his diagnoses,
and to connect her experts’ later diagnoses to Middlebrooks’s
preexisting history of mental illness. 15 In addition, Dr. McKee, one
of Middlebrooks’s expert witnesses, testified extensively about the
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
hospitalizations, including her reported delusions and the diagnoses
by VA physicians, including Dr. Evans. Given that defense counsel
was able to elicit the desired evidence, Middlebrooks has not shown
a reasonable probability that, but for defense counsel’s allegedly
deficient performance with regard to accepting the limitations on
Dr. Evans’s testimony, the outcome of the trial would have been
different. Accordingly, this claim of error fails. See Hornbuckle v.
State, 300 Ga. 750, 758 (6) (c) (797 SE2d 113) (2017). 16
Judgment affirmed. All the Justices concur.
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