2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 1 - Responsibility
§ 16-3-2. Mental Capacity; Insanity

A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.

(Code 1933, § 26-702, enacted by Ga. L. 1968, p. 1249, § 1.)

- Mental capacity to stand trial; release of competency evaluation to prosecuting attorney, § 17-7-129.

Mental capacity as it relates to competency to stand trial and as it relates to culpability for criminal acts, § 17-7-130.

Proceedings upon plea of insanity or mental incompetency, § 17-7-131.

- For article, "The Georgia Law of Insanity," see 3 Ga. B.J. 28 (1941). For article discussing the theory of insanity in criminal law, see 15 Mercer L. Rev. 399 (1964). For annual survey on criminal law, see 65 Mercer L. Rev. 79 (2013). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited," see 68 Mercer L. Rev. 35 (2016). For article, "An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases," see 33 Ga. St. U. L. Rev. 553 (2017). For note discussing criminal responsibility and mental illness as a defense in Georgia, see 23 Ga. B. J. 538 (1961). For note comparing the M'Naghten Rule and the irresistible impulse test for legal tests of insanity, see 14 Mercer L. Rev. 418 (1963). For comment on Nelson v. State, 151 N.W.2d 694 (Wis. 1967), as to constitutionality of appointment of general practitioner as an expert witness on issue of defendant's sanity, see 19 Mercer L. Rev. 263 (1968). For comment, "Saving the Deific Decree Exception to the Insanity Defense in Illinois: How a Broad Interpretation of 'Religious Command' May Cure Establishment Clause Concerns," see 46 J. Marshall L. Rev. 56 (2013).

ANALYSIS

• General Consideration
• Application

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided prior to the codification of this principle by Ga. L. 1968, p. 1249, § 1 are included in the annotations for this Code section.

- Georgia's insanity laws are not unconstitutional even though they fail to provide for an impulse-control-disorder insanity defense. Hicks v. State, 256 Ga. 715, 352 S.E.2d 762, cert. denied, 482 U.S. 931, 107 S. Ct. 3220, 96 L. Ed. 2d 706 (1987).

That O.C.G.A. § 16-3-2 is defined in terms of an accused's mental capacity to distinguish between right and wrong at the time of the crime did not render the statute unconstitutionally vague. Brantley v. State, 262 Ga. 786, 427 S.E.2d 758 (1993).

- First codified "insanity defense" law of Georgia, that "[a] lunatic or person insane, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged, provided the act so charged as criminal was committed in the condition of such lunacy or insanity; but if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency," is essentially consistent with O.C.G.A. §§ 16-3-2 and16-3-3, and is still the law of Georgia. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983).

§ 16-3-4 in cases involving intoxication. - Law of intoxication contained in O.C.G.A. § 16-3-4 must be read in light of O.C.G.A. § 16-3-2. Section 16-3-4 limits the reach of § 16-3-2 so that the inability to distinguish between right and wrong is not a defense if the inability is a consequence of voluntary intoxication (but remains a defense if the inability is a consequence of involuntary intoxication). Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110, 104 L. Ed. 2d 671 (1989).

Section not limited by § 17-7-130.1. - O.C.G.A. §§ 16-3-2 and16-3-3 provide the authority for any defendant to assert an insanity defense, and there is nothing in O.C.G.A. § 17-7-130.1 which limits that authority. Motes v. State, 256 Ga. 831, 353 S.E.2d 348 (1987).

- Tests under former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and16-3-3) concern mental responsibility of defendant for crime at time alleged offense was committed, whereas, a special plea of insanity relates only to mental competency of defendant to participate in trial at time of trial; thus, the so-called special plea of insanity does not relate to mental responsibility, but to mental competency. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

Issue raised by special plea of insanity at time of trial is not whether defendant can distinguish between right and wrong, but is whether defendant is capable at time of trial of understanding the nature and object of the proceedings going on against the defendant and rightly comprehends defendant's own condition in reference to such proceedings, and is capable of rendering defense attorneys such assistance as a proper defense to indictment preferred against the defendant demands. Spain v. State, 243 Ga. 15, 252 S.E.2d 436 (1979); Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

General insanity is not a defense to a crime; the only defenses recognized in Georgia are found in O.C.G.A. § 16-3-2 (no capacity to distinguish right from wrong at the time of the act, omission, or negligence) and O.C.G.A. § 16-3-3 (delusional compulsion at the time of the act, omission, or negligence constituting the crime). Gould v. State, 168 Ga. App. 605, 309 S.E.2d 888 (1983).

Legal insanity concerns ability to distinguish right from wrong, and delusional compulsions which overmaster one's will. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979); Green v. State, 197 Ga. App. 16, 397 S.E.2d 590 (1990).

Temporary insanity is a recognized defense in Georgia. Jackson v. State, 149 Ga. App. 253, 253 S.E.2d 874 (1979).

- Insanity may be, and very frequently is, only a temporary malady and, if accused, at time of act the commission of which the accused is charged, did not have reason sufficient to distinguish between right and wrong with reference to that act, the accused would not be criminally responsible, and it makes no difference, insofar as the law is concerned, whether the accused's condition of insanity at time of commission of the act was of a temporary nature or permanent in character, the test of criminal responsibility being the condition of the accused's mind at the time of commission of the act. Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951).

- Verdicts of not guilty by reason of insanity on a malice murder charge and guilty but mentally ill on a felony murder charge were vacated because the convictions required affirmative findings of different mental states that could not exist at the same time; the defendant could not be insane and not insane during a single criminal episode against a single victim. McElrath v. State, 308 Ga. 104, 839 S.E.2d 573 (2020).

Mental abnormality is not a defense to a crime unless it amounts to insanity. Dennis v. State, 170 Ga. App. 630, 317 S.E.2d 874 (1984).

Weakmindedness alone is no defense to crime. Bonner v. State, 118 Ga. App. 530, 164 S.E.2d 453 (1968).

Evidence that defendant had mentality of child does not relieve defendant from responsibility for crime. Reece v. State, 212 Ga. 609, 94 S.E.2d 723 (1956).

Mere showing of a medical psychosis, such as schizophrenia, does not establish legal insanity. Dennis v. State, 170 Ga. App. 630, 317 S.E.2d 874 (1984).

Schizophrenia is a psychosis, but a psychosis is not the equivalent of insanity. Merely showing that a person suffers from schizophrenia or some other psychosis does not establish legal insanity. Rogers v. State, 195 Ga. App. 446, 394 S.E.2d 116 (1990).

- In every circumstance, including the existence of multiple personalities, the law is justified in finding accountability where at the time of the criminal act the person had the mental capacity to distinguish between right and wrong in relation to such act and was not acting because of a delusional compulsion as to such act which overmastered the person's will to resist committing the crime, which delusion would, if true, have justified the act. If these elements are found to be present the law will not inquire whether the individual possesses other personalities, fugues, or even moods in which the person would not have performed the act or perhaps did not even know the act was being performed. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983).

Fact that defendant suffered from a multiple personality disorder did not absolve defendant of criminal responsibility, since it was undisputed that the defendant was conscious and acting under the defendant's own volition, and the defendant was able to recognize right from wrong and was not suffering from delusional compulsions. Kirby v. State, 201 Ga. App. 116, 410 S.E.2d 333 (1991).

- Defendant did not receive effective assistance of counsel when the defendant provided counsel with medical records showing that the defendant suffered from "confusional migraines," which could render the defendant unable to form the requisite criminal intent, but counsel did not investigate the condition, nor was evidence of it, which was the only defense offered, presented; furthermore, the defendant was prejudiced because other evidence showed the defendant was suffering from this condition at the time of the defendant's alleged crime. Guzman v. State, 260 Ga. App. 689, 580 S.E.2d 654 (2003).

- Persons are not excused from criminal liability under O.C.G.A. § 16-3-2 because they are incapable of forming criminal intent. Lack of intent is a defense, but it is not implicated by that Code section. Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110, 104 L. Ed. 2d 671 (1989).

Finding of insanity necessarily negates essential element of criminal intent. Avery v. State, 138 Ga. App. 65, 225 S.E.2d 454, rev'd on other grounds, 237 Ga. 865, 230 S.E.2d 301 (1976).

Georgia law presumes sanity, and insanity is an affirmative defense. Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986).

Insanity is an affirmative defense that accused must prove by preponderance of evidence. and suffers from no constitutional infirmity. Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139, 58 L. Ed. 2d 144 (1978); Adams v. State, 254 Ga. 481, 330 S.E.2d 869 (1985).

- In every case there is a presumption that accused is sane, but this presumption may be overcome by a preponderance of evidence. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947).

Responsibility for establishing defense of insanity is on defense. Revill v. State, 235 Ga. 71, 218 S.E.2d 816 (1975).

When one has been adjudged insane, presumption is that such insanity continues until contrary adjudication. Orange v. State, 77 Ga. App. 36, 47 S.E.2d 756 (1948).

- Defendant's administrative release from hospitalization for mental illness cancelled any previously existing presumption of insanity, leaving a rebuttable presumption of sanity. Salter v. State, 257 Ga. 88, 356 S.E.2d 196 (1987).

Presumption of sanity may be rebutted by evidence of the mental condition of the accused at the time of the offense, or before and after the offense, which tends to show the accused's condition at the time of the offense. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

That the state must prove sanity beyond a reasonable doubt is not antagonistic to the notion that the defendant has the burden to establish insanity by a preponderance of the evidence. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983).

Rule regarding burden of proof suffers from no constitutional infirmity. Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert denied, 439 U.S. 844, 99 S. Ct. 139, 58 L. Ed. 2d 144 (1978).

- When charge of court includes instruction as to insanity but places burden of proof as to each essential element of crime, including intent, upon state beyond reasonable doubt, it is not error for the court not to instruct the jury specifically, absent request, as to any burden of proof regarding sanity. Howard v. State, 150 Ga. App. 356, 258 S.E.2d 39 (1979).

Insanity is a question of fact, and not of law, and it is the exclusive province of the jury to determine all questions of fact; but this does not mean that juries can arbitrarily disregard clearest and most convincing proof, and accept, as truth in evidence, that which, from every standpoint of reason and human experience, is not entitled to any evidentiary weight or value; and, if they do so the ends of justice demand that their verdict should be disregarded. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947) (decided under prior law).

- To show insanity of accused at time of commission of offense it is relevant to introduce testimony showing mental condition of accused at time of offense, and defendant's mental condition before and after offense may be proved as tending to show defendant's condition at time of offense. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947).

Sanity or insanity is proper subject for opinion evidence, and if the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to an opinion or belief, giving reasons therefor. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

- Lay witnesses should be permitted to use incidents from post-homicide period for basis of opinions as to defendant's sanity. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

Exclusion of testimony of witnesses' lay opinions as to defendant's mental state based on post-homicide observations is not harmful error where there is no evidence that defendant did not know the difference between right and wrong. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

- While a lay witness may testify regarding the witness's opinion or belief as to a defendant's sanity, giving reasons therefor, the exclusion of such testimony does not warrant a new trial when there was no evidence that the defendant did not know the difference between right and wrong. Smith v. State, 180 Ga. App. 278, 349 S.E.2d 26 (1986).

There is no constitutional right to mental examination, absent reasonable showing of need therefor, as there is a basic presumption of sanity. Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967), aff'd, 391 F.2d 907 (5th Cir. 1968), cert. denied, 393 U.S. 1095, 89 S. Ct. 884, 21 L. Ed. 2d 786 (1969).

Court is under no duty to grant psychiatric examination in absence of special plea of insanity. McNeil v. State, 165 Ga. App. 537, 301 S.E.2d 895 (1983).

- Appointment of a psychiatrist is not always necessary, even when the defense makes a motion for appointment of one as that does not constitute the required preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial. LaCount v. State, 265 Ga. App. 352, 593 S.E.2d 885 (2004).

- Defendant failed to show that counsel was ineffective in violation of U.S. Const., amend. 6 for a failure to pursue a request for a psychological examination, an insanity defense under O.C.G.A. § 16-3-2, and a failure to assert that the defendant was not competent to stand trial under O.C.G.A. § 17-7-130 in a criminal trial arising from multiple offenses, including murder, as there was nothing in the defendant's psychological history or in counsels' interactions with the defendant which suggested that there was a problem with the defendant's sanity or competency. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485 (2005).

- Defendant failed to show ineffective assistance of defense counsel for failure to pursue a psychological examination of the defendant to determine whether the defendant could assert the defense of mental incapacity by insanity because counsel testified that, upon counsel's dealings with the defendant, counsel did not believe that any such examination was necessary. Further, regardless of whether trial counsel had any obligation to seek a psychological evaluation of the defendant under the facts, the defendant failed to show what the result of any such examination would be and thus failed to establish prejudice by showing that the result of the trial would have been different if a psychological examination was pursued. Taylor v. State, 282 Ga. 693, 653 S.E.2d 477 (2007).

- Defendant received an evaluation of the defendant's mental competence at the time of the offenses and the defendant's competency to stand trial for the charges. Nothing in the record indicated the defendant's inability to distinguish (as opposed to do) right from wrong, so the trial court did not abuse its discretion in not ordering another evaluation. LaCount v. State, 265 Ga. App. 352, 593 S.E.2d 885 (2004).

Cited in Teasley v. State, 228 Ga. 107, 184 S.E.2d 179 (1971); Freeman v. State, 132 Ga. App. 742, 209 S.E.2d 127 (1974); Graham v. State, 236 Ga. 378, 223 S.E.2d 803 (1976); Biddy v. State, 138 Ga. App. 4, 225 S.E.2d 448 (1976); Barner v. State, 139 Ga. App. 50, 227 S.E.2d 874 (1976); Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977); Moore v. State, 142 Ga. App. 145, 235 S.E.2d 577 (1977); Lewis v. State, 239 Ga. 732, 238 S.E.2d 892 (1977); Hill v. State, 144 Ga. App. 259, 241 S.E.2d 44 (1977); Bennett v. State, 146 Ga. App. 407, 246 S.E.2d 425 (1978); Longshore v. State, 242 Ga. 689, 251 S.E.2d 280 (1978); Shirley v. State, 149 Ga. App. 194, 253 S.E.2d 787 (1979); Howard v. State, 150 Ga. App. 356, 258 S.E.2d 39 (1979); Moody v. State, 244 Ga. 247, 260 S.E.2d 11 (1979); Smith v. State, 245 Ga. 44, 262 S.E.2d 806 (1980); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980); Murphy v. State, 246 Ga. 626, 273 S.E.2d 2 (1980); Bailey v. State, 249 Ga. 535, 291 S.E.2d 704 (1982); Brown v. State, 250 Ga. 66, 295 S.E.2d 727 (1982); Corn v. Zant, 708 F.2d 549 (11th Cir. 1983); Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984); O'Neal v. State, 254 Ga. 1, 325 S.E.2d 759 (1985); Caldwell v. State, 257 Ga. 10, 354 S.E.2d 124 (1987); Holloway v. State, 257 Ga. 620, 361 S.E.2d 794 (1987); Dick v. Kemp, 833 F.2d 1448 (11th Cir. 1987); Godfrey v. Kemp, 836 F.2d 1557 (11th Cir. 1988); Sciarrone v. Brownlee, 83 Bankr. 836 (Bankr. N.D. Ga. 1988); Lawrence v. State, 265 Ga. 310, 454 S.E.2d 446 (1995); Vanderpool v. State, 244 Ga. App. 804, 536 S.E.2d 821 (2000), cert denied, 532 U.S. 996, 121 S. Ct. 1658, 149 L. Ed. 2d 640 (2001); Hicks v. Head, 333 F.3d 1280 (11th Cir. 2003); Radford v. State, 281 Ga. 303, 637 S.E.2d 712 (2006); McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019); Sullivan v. State, 308 Ga. 508, 842 S.E.2d 5 (2020).

Application

Deficiency of will, conscience, or controlling mental power.

- Under former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and16-3-3), if one's reason and mental powers are either so deficient that one has no will, conscience, or controlling mental power, or if through overwhelming power of mental disease, one's intellectual power is for the time obliterated, one is not a responsible moral agent, and is not punishable for criminal acts. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).

- When, in arguing that the defendant did not meet the burden of proof, the state points to actions taken by the defendant after the murder, including wiping blood from the windows and placing the blood-covered shirt and tee-shirt in the rear of the car, as well as asking about the death penalty in Georgia, these facts might be relevant to the defendant's argument under O.C.G.A. § 16-3-2 that at the time of the crime the defendant lacked the capacity to distinguish between right and wrong, but the facts asserted by the state do not detract from the overwhelming evidence in support of the defendant's defense under O.C.G.A. § 16-3-2, that at the time of the homicide the defendant was acting under a delusional compulsion which overmastered the defendant's will to resist committing the crime. Stevens v. State, 256 Ga. 440, 350 S.E.2d 21 (1986).

- Evidence that the defendant knew right from wrong but believed the defendant's actions to have been justified by the delusion of the defendant's spouse's infidelity did not meet the test of insanity which would require a verdict of not guilty by reason of insanity at the defendant's trial for the murder of the defendant's neighbor. Salter v. State, 257 Ga. 88, 356 S.E.2d 196 (1987).

Epilepsy can be defense to crime. Murphy v. State, 132 Ga. App. 654, 209 S.E.2d 101 (1974).

Epileptics are responsible for their acts unless reason is dethroned because of seizure of epilepsy at time of such conduct. Starr v. State, 134 Ga. App. 149, 213 S.E.2d 531 (1975).

- Evidence that defendant became addicted to narcotics in prison and that the burglary of medical pharmacy was result of overwhelming passion for narcotics brought on by withdrawal symptoms does not demand conclusion either that defendant lacked mental capacity to distinguish between right and wrong, or that because of mental disease defendant acted under a delusional compulsion which overmastered defendant's will to resist committing the crime. Brand v. State, 123 Ga. App. 273, 180 S.E.2d 579 (1971).

Some evidence that defendants were intoxicated, by itself, does not require charge under former Code 1933, § 26-702. Treadwell v. State, 129 Ga. App. 573, 200 S.E.2d 323 (1973).

- If only evidence of insanity is defendant's testimony that defendant cannot remember events surrounding episode which was the result of intoxication, this would not require instruction on insanity. Jackson v. State, 149 Ga. App. 253, 253 S.E.2d 874 (1979).

- When there was no plea of insanity and no evidence of insanity save the defendant's assertion that after being struck on the head by the deceased, the defendant did not remember what happened, a charge on insanity was not required. Garrett v. State, 126 Ga. App. 83, 189 S.E.2d 860 (1972).

- When the only testimony relating to the defendant's mental condition was from his former wife, who testified that on observing defendant just prior to the assault, she told her mother, "Maybe he's going crazy," and on cross-examination she responded: "If you want my opinion, I'll say he's crazy," such testimony, without any clarification or foundation, does not raise issue of insanity sufficiently to require charge thereon in absence of request to so charge. McClendon v. State, 157 Ga. App. 435, 278 S.E.2d 96 (1981).

- Testimony from the defendant's expert that the defendant suffered from a major depressive disorder, Asperger's disorder, and schizoid personality disorder, had a diminished capacity for distinguishing right and wrong and was delusional, and from the court-appointed expert that the defendant knew right from wrong and was not suffering from any delusional compulsion, authorized a trier of fact to find the defendant guilty but mentally ill of the crimes for which the defendant was convicted. Norred v. State, 297 Ga. 234, 773 S.E.2d 234 (2015).

- See Duck v. State, 250 Ga. 592, 300 S.E.2d 121 (1983).

Defendant's requested charge regarding the defense of insanity was properly denied as the defendant conceded that the defendant was not acting under a delusional compulsion, and the defendant provided no evidence to show that the defendant lacked the mental capacity to distinguish between right and wrong when the defendant was stabbing the victim because the defendant knowingly intended to confront the victim as the defendant believed that the victim had stolen the defendant's Social Security check; and the defendant testified that the defendant knew exactly what the defendant was doing, the defendant knew the reason that the defendant was doing it, and the defendant believed that the defendant was justified in doing so. Jackson v. State, 301 Ga. 878, 804 S.E.2d 357 (2017).

Trial court did not err by declining to give a jury instruction on insanity because, while the jury heard testimony that the defendant was "acting crazy" at the time of the alleged offense and urinated in a trash can at the police station, there was no evidence that the defendant was legally insane or operating under a delusion. Hudson v. State, 308 Ga. 443, 841 S.E.2d 696 (2020).

- Trial court did not err in excluding the defendant's expert testimony regarding the defendant's Post-Traumatic Stress Disorder because Georgia courts have consistently upheld the exclusion of evidence of a defendant's diminished mental condition when offered to support other defenses or to negate the intent element of a crime. Brower v. State, 334 Ga. App. 262, 779 S.E.2d 32 (2015).

- In light of the statutory definition of insanity, a trial court's jury charge that being upset or distraught, or suffering from mental stress, was not a defense if the defendant was able to distinguish right from wrong was a correct statement of the law and was not a judicial comment on the evidence. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

When the trial court instructed the jury that the reasonable man standard governs a person's act, and when an act violates that standard and a penal statute, the conduct is criminal unless excused by insanity, the charge does not direct a verdict against the defendant; the jury instruction states valid principles of law. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

Trial court correctly charged the jury that the defendant's inability to evaluate the quality and consequences of defendant's acts to the same degree as a normal or average person would not excuse the defendant if the defendant was able to distinguish between right and wrong. Adams v. State, 254 Ga. 481, 330 S.E.2d 869 (1985).

Instruction on self-defense did not result in reversible error because the trial court fully and adequately charged and recharged on the issue of self-defense, including the statutory language "reasonably believes" in O.C.G.A. § 16-3-21(a), and on the state's burden to prove beyond a reasonable doubt that the defendant was not justified. Hill v. State, 290 Ga. 493, 722 S.E.2d 708 (2012).

- State does not have burden of proving sanity of accused beyond reasonable doubt, so it is not error to refuse to give such an instruction to the jury. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

It is not error to charge that defendant has burden of proving mental incapacity by preponderance of evidence. Such a charge does not impermissibly shift the burden of proof to the defendant. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

Charging that mental abnormality or mere weakness of mind is no excuse did not constitute error, unless the abnormality or weakness amounts to imbecility or idiocy which deprives the offender of the ability to distinguish between right and wrong in relation to the particular act about to be committed. Howard v. State, 166 Ga. App. 224, 303 S.E.2d 763 (1983).

Mental abnormality or weakness of mind does not excuse criminal actions unless the abnormality or weakness is tantamount to imbecility or idiocy which deprives the actor of the ability to distinguish right from wrong. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984).

- When the evidence on insanity was conflicting, the jury was authorized to find that a defendant failed to prove insanity by a preponderance of the evidence. Foster v. State, 283 Ga. 47, 656 S.E.2d 838 (2008).

- Although the defendant's experts opined that the defendant was insane when the defendant stabbed two people after consuming alcohol and cocaine with the defendant's victims, the Georgia Supreme Court affirmed the jury's verdict that the defendant was not insane because testimony from the state's expert that the defendant knew the difference between right and wrong when the defendant committed the crimes and testimony from a police officer that the defendant was calm and cooperative when the officer talked to the defendant shortly after the defendant committed the crimes supported the jury's verdict. Whitner v. State, 276 Ga. 742, 584 S.E.2d 247 (2003), overruled on other grounds, Ledford v. State, 289 Ga. 70, 709 S.E.2d 239 (2011).

Because there was competing expert testimony concerning the defendant's sanity, and the jury was not required to accept the opinion of the defense experts, the jury was authorized to conclude that the defendant failed to show that the defendant was not guilty by reason of insanity. Bowman v. State, 306 Ga. 97, 829 S.E.2d 139 (2019).

- Jury is free to reject testimony of expert witnesses as to insanity of accused and rely instead on presumption of sanity and can find that defendant is sane even though there is no positive testimony to that effect. Fields v. State, 221 Ga. 307, 144 S.E.2d 339 (1965) (decided under prior law).

There is no error in court's refusal to charge that jury cannot arbitrarily disregard defense established by positive, uncontradicted, unimpeached testimony, even assuming testimony of defendant's good character and insanity was positive, uncontradicted, and unimpeached. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

- When both defense of general insanity and defense of delusional insanity are involved, it is not only the right but the duty of the judge to give to the defendant by the judge's charge the benefit of both defenses. Reeves v. State, 196 Ga. 604, 27 S.E.2d 375 (1943) (decided under prior law).

Charge on delusional compulsion is not authorized when the delusion allegedly suffered by defendant (the adulterous affair between her husband and the victim) does not justify homicide. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

- See Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

- When the appellant admitted an intention to rape the victim, but said that "God or Jesus, Savior, put all this stuff in my head and messed me up," evidence supported the jury's finding that the appellant was not insane so as to excuse the appellant's criminal act. Dupree v. State, 163 Ga. App. 502, 295 S.E.2d 332 (1982).

- When the trial court charges the jury on the defense of insanity at the time of the crime, O.C.G.A. § 16-3-2, and on guilty but mentally ill at the time of the crime, O.C.G.A. § 17-7-131, the trial court must make clear to the jury in its charge that if they find the defendant did not have the mental capacity to distinguish between right and wrong (or acted because of delusional compulsion), they must find the defendant not guilty by reason of insanity and must not find the defendant guilty but mentally ill. Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985); Price v. State, 179 Ga. App. 598, 347 S.E.2d 608 (1986).

- Since the trial judge accepted that defendant suffers from a multiple personality disorder, but ruled that the personality (be she Phyllis or Sharon, or both) who robbed the banks did so with rational, purposeful criminal intent and with knowledge that it was wrong, there is no error in the judge finding that defendant was guilty but mentally ill. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983).

- Where a clinical psychologist testified that the defendant was a responsible and competent person at the time of the killing and did not kill the victim as a result of schizophrenia, a rational trier of fact could have found that the defendant did not show by a preponderance of the evidence that defendant was legally insane at the time of the crime. Stephens v. State, 258 Ga. 320, 368 S.E.2d 754 (1988).

When the defendant's counsel acquiesced in presenting the guilty-but-mentally-ill verdict option to the jury, the defendant was estopped from contending on appeal that the option infringed on defendant's defense of insanity. Milam v. State, 255 Ga. 560, 341 S.E.2d 216 (1986).

Guilty but mentally ill verdict under O.C.G.A. § 17-7-131 allowed for accommodation to the mental health needs of the appellant who was found guilty, but was laboring under a mental illness which fell short of the legal defense of insanity and delusional compulsion promulgated in O.C.G.A. §§ 16-3-2 and16-3-3. Dimauro v. State, 185 Ga. App. 524, 364 S.E.2d 900 (1988).

- See Tarver v. State, 186 Ga. App. 905, 368 S.E.2d 828 (1988); Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988); Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996).

There was evidence from which a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that the defendant was insane at the time of the crime because the state presented the testimony of a forensic psychologist that the defendant's efforts to clean up the blood and hide the body indicated that the defendant knew the wrongfulness of the defendant's actions, that the defendant's statement to police that the defendant acted in self-defense was a rational motive for the defendant's escalating fight with the victim, and that there was no evidence that the defendant was delusional at the time of the crimes. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).

Because the defendant failed to present any evidence from which a jury could conclude that the defendant did not know right from wrong when the defendant committed the criminal acts, the trial court did not err in declining to charge the jury pursuant to O.C.G.A. § 17-7- 131(b)(1)(C) that the defendant could be found not guilty by reason of insanity under O.C.G.A. § 16-3-2; the defendant introduced no evidence of insanity, only lay witness testimony about generalized problems. McBride v. State, 314 Ga. App. 725, 725 S.E.2d 844 (2012).

- Even if trial counsel were ineffective in not calling a psychologist to testify for the defense that the defendant was incompetent to stand trial and that the defendant was insane at the time of the crime under O.C.G.A. §§ 16-3-2 and16-3-3, the defense expert's testimony would not have changed the outcome; the defense expert's opinion was contradicted by a second expert, whose opinion was based on an evaluation over an extended period of time as opposed to the defense expert's evaluation of less than one day, and by testimony of the defendant and trial counsel that the defendant understood the basis of the charges and the nature of the proceedings and assisted in preparing the defense. Wallin v. State, 285 Ga. App. 377, 646 S.E.2d 484 (2007).

There is no constitutional right to mental examination, absent reasonable showing of need therefor, as there is a basic presumption of sanity. Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967).

- Defendant was properly convicted of terroristic threats in violation of O.C.G.A. § 16-11-37(a) because the jury was presented with sufficient evidence by which to find that the defendant intended to terrorize officers by communicating a threat to blow up the defendant's home using propane; although there was testimony that the defendant suffered from a history of mental illness, the defendant did not plead the affirmative defense of insanity, and the issue of the defendant's criminal intent was a question of fact for the jury, which was presented with sufficient evidence to establish the requisite criminal intent. Layne v. State, 313 Ga. App. 608, 722 S.E.2d 351 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Definitions of insanity are inapplicable to instructions to physician.

- In view of fact that former Code 1933, § 27-2602 (see now O.C.G.A. § 17-10-61) specifically requires that inquiry into whether person convicted of capital felony offense has become insane be directed to alleged insanity occurring subsequent to conviction, definitions of insanity as stated in former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and16-3-3) are inapplicable and should not be given in written instructions to physicians appointed pursuant to former Code 1933, § 27-2602 (see now O.C.G.A. § 17-10-61); since basic issue is the individual's sanity at a time subsequent to conviction, or in effect, the person's present sanity, the appropriate test should be that as employed upon a special plea of insanity. 1976 Op. Att'y Gen. No. 76-123.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 50 et seq. 29 Am. Jur. 2d, Evidence, § 437. 29A Am. Jur. 2d, Evidence, § 871 et seq. 75 Am. Jur. 2d, Trial, § 275. 75A Am. Jur. 2d, Trial, § 600.

Defendant's Competency to Stand Trial, 40 POF2d 171.

- 22 C.J.S., Criminal Law: Substantive Principles, § 127.

- Test of present insanity which will prevent trial for crime or punishment after conviction, 3 A.L.R. 94.

Remedy of one convicted of crime while insane, 10 A.L.R. 213; 121 A.L.R. 267.

Subnormal mentality as defense to crime, 44 A.L.R. 584.

Constitutionality of statute relating to insanity as defense to crime, 74 A.L.R. 265.

Irresistible impulse as excuse for crime, 173 A.L.R. 391.

Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d 121.

Prejudicial effect of argument or comment that accused, if acquitted on ground of insanity, would be released from institution to which committed, 44 A.L.R.2d 978.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.2d 12.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

XYY syndrome as affecting criminal responsibility, 42 A.L.R.3d 1414.

Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.

Modern status of test of criminal responsibility - state cases, 9 A.L.R.4th 526.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 A.L.R.5th 777.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.

Adequacy of defense counsel's representation of criminal client - conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

Amnesia as affecting defendant's competency to stand trial, 100 A.L.R.6th 535.

Posttraumatic stress disorder (PTSD) as defense to murder, assault, or other violent crime, 4 A.L.R.7th 5.