2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 6 - Demurrers, Motions, and Special Pleas and Exceptions
Part 2 - Insanity and Mental Incompetency
§ 17-7-130. Proceedings Upon Plea of Mental Incompetency to Stand Trial

1. As used in this Code section, the term:
   1. "Child" means an accused person under the jurisdiction of the superior court pursuant to Code Section 15-11-560.
   2. "Civil commitment" means the accused's involuntary inpatient or outpatient commitment pursuant to Chapter 3 or 4 of Title 37, as appropriate.
   3. "Court" means the court which has jurisdiction over the criminal charges against the accused.
   4. "Department" means the Department of Behavioral Health and Developmental Disabilities.
   5. "Developmental disability" shall have the same meaning as set forth in paragraph (8) of Code Section 37-1-1.
   6. "Inpatient" shall have the same meaning as in paragraph (9.1) of Code Section 37-3-1; provided, however, that as applied to a child for purposes of this Code section, the term shall mean a child who is mentally ill or has a developmental disability and is in need of involuntary placement.
   7. "Nonviolent offense" means any offense other than a violent offense.
   8. "Outpatient" shall have the same meaning as in paragraph (12.1) of Code Section 37-3-1, provided that:
      1. As applied to a child for purposes of this Code section, the term shall mean a child who is mentally ill or has a developmental disability and is in need of involuntary placement; and
      2. The court determines that the accused meets the criteria for release on bail or other pre-trial release pursuant to Code Section 17-6-1.
   9. "Serious violent felony" shall have the same meaning as set forth in Code Section 17-10-6.1.
   10. "Sexual offense" shall have the same meaning as set forth in Code Section 17-10-6.2.
   11. "Violent offense" means:
       1. 1. A serious violent felony;
          2. A sexual offense;
          3. Criminal attempt to commit a serious violent felony;
          4. Criminal attempt to commit a sexual offense;
          5. Aggravated assault;
          6. Hijacking a motor vehicle in the first degree or hijacking an aircraft;
          7. Aggravated battery;
          8. Aggravated stalking;
          9. Arson in the first degree or in the second degree;
          10. Stalking;
          11. Fleeing and attempting to elude a police officer;
          12. Any offense which involves the use of a deadly weapon or destructive device; and
       2. Those felony offenses deemed by the court to involve an allegation of actual or potential physical harm to another person.
2. 1. If an accused files a motion requesting a competency evaluation, the court may order the department to conduct an evaluation by a physician or licensed psychologist to determine the accused's mental competency to stand trial and, if such physician or licensed psychologist determines the accused to be mentally incompetent to stand trial, to make recommendations as to restoring the accused to competency. If the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department. The department's evaluation shall be submitted to the court, and the court shall submit such evaluation to the attorney for the accused or if pro se, to the accused, but otherwise, the evaluation shall be under seal and shall not be released to any other person absent a court order.
   2. If the accused files a special plea alleging that the accused is mentally incompetent to stand trial, it shall be the duty of the court to have a bench trial, unless the state or the accused demands a special jury trial, to determine the accused's competency to stand trial. Once a special plea has been filed, the court shall submit the department's evaluation to the prosecuting attorney.
3. If the court finds the accused is mentally incompetent to stand trial, the court may order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the accused will attain mental competency to stand trial in the foreseeable future. The court shall retain jurisdiction over the accused and shall transfer the accused to the physical custody of the department. At its discretion, the court may allow the evaluation to be performed on the accused as an outpatient if the accused is charged with a nonviolent offense. Such evaluation shall be performed within 90 days after the department has received actual custody of an accused or, in the case of an outpatient, a court order requiring evaluation of an accused. If the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department. If the evaluation shows:
   1. That the accused is mentally competent to stand trial, the department shall immediately report that determination and the reasons therefor to the court, and the court shall submit such determination to the attorney for the accused or, if pro se, to the accused and to the prosecuting attorney. The accused shall be returned to the court as provided for in subsection (d) of this Code section;
   2. That the accused is mentally incompetent to stand trial and that there is not a substantial probability that the accused will attain competency in the foreseeable future, the court shall follow the procedures set forth in subsection (e) of this Code section for civil commitment or release; or
   3. That the accused is mentally incompetent to stand trial but there is a substantial probability that the accused will attain competency in the foreseeable future, by the end of the 90 day period, or at any prior time, the department shall report that finding and the reasons therefor to the court and shall retain custody over the accused for the purpose of continued treatment for an additional period not to exceed nine months; provided, however, that if the accused is charged with a misdemeanor offense or a nonviolent offense, the court shall retain jurisdiction over the accused but may, in its discretion, allow continued treatment to be done on an outpatient basis by the department. The department shall monitor the accused's outpatient treatment for the additional period not to exceed nine months. If, by the end of the nine-month period or at any prior time the accused's condition warrants, the accused is still determined by the department physician or licensed psychologist to be mentally incompetent to stand trial, irrespective of the probability of recovery in the foreseeable future, the department shall report that finding and the reasons therefor to the court. The court shall then follow the procedures in subsection (e) of this Code section for civil commitment or release.
4. 1. If the department's physician or licensed psychologist determines at any time that the accused is mentally competent to stand trial, the department shall notify the court, and the accused shall be discharged into the custody of a sheriff of the jurisdiction of the court unless the charges which led to the evaluation or civil commitment have been dismissed, in which case, the accused shall be discharged from the department. In the event a sheriff does not appear and take custody of the accused within 20 days after notice to the appropriate sheriff of the jurisdiction of the court, the presiding judge of the court, and the prosecuting attorney for the court, the department shall itself return the accused to one of the court's detention facilities, and the cost of returning the accused shall be paid by the county in which the court is located. All notifications under this paragraph shall be sent by certified mail or statutory overnight delivery, return receipt requested. As an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. Regardless of where the accused is held, the court shall hold a bench trial to determine the accused's mental competency to stand trial within 45 days of receiving the department's evaluation or, if demanded, shall conduct a special jury trial within six months of receiving the department's evaluation.
   2. If the accused is an outpatient and the department's physician or licensed psychologist determines at any time that the accused is mentally competent to stand trial, the accused may remain in the community under conditions of bond or other conditions ordered by the court, if any, until the date of the accused's trial, which shall be within 45 days of the court receiving the department's evaluation if tried by the court or within six months of receiving the department's evaluation if a special jury trial is demanded.
5. If the evaluation performed pursuant to subsection (c) of this Code section shows that the accused is mentally incompetent to stand trial and that there is not a substantial probability that the accused will attain competency in the foreseeable future:
   1. If the accused is charged with a misdemeanor, the department shall return the physical custody of the accused to a sheriff of the jurisdiction of the court; provided, however, that as an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. Regardless of where the accused is held, the court shall, within 45 days of receiving the department's evaluation:
      1. Consider entry of a nolle prosequi of the charges pursuant to Code Section 17-8-3 and, if the accused is not a child, request that the department petition the probate court of the jurisdiction of the accused's residence for civil commitment of the accused; or
      2. If the court finds that the accused does not meet the criteria for civil commitment, the accused shall be released in accordance with the provisions of Chapter 6 of this title; or
   2. If the accused is charged with a felony, the department shall return the physical custody of the accused to a sheriff of the jurisdiction of the court; provided, however, that as an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. The department shall report to the court its finding regarding the accused's mental competency to stand trial, the reasons therefor, and its opinion as to whether the accused currently meets the criteria for civil commitment. The court may order an independent evaluation of the accused by a court appointed licensed clinical psychologist or psychiatrist, who shall report to the court in writing as to the current mental and emotional condition of the accused. Regardless of where the accused is held, the court shall, within 45 days of receiving the department's evaluation:
      1. Consider entry of a nolle prosequi of the charges pursuant to Code Section 17-8-3 and, if the accused is not a child, request that the department petition the probate court of the jurisdiction of the accused's residence for civil commitment of the accused; or
      2. Retain jurisdiction of the accused and conduct a trial at which the court shall hear evidence and consider all psychiatric and psychological evaluations submitted to the court and determine whether the state has proved by clear and convincing evidence that the accused meets the criteria for civil commitment. The burden of proof in such trials shall be upon the state. Following the trial:
         1. If the court finds that the accused does not meet the criteria for civil commitment, the accused shall be released in accordance with the provisions of Chapter 6 of this title;
         2. If the court finds that the accused meets the criteria for civil commitment, the judge may issue an order civilly committing the accused, and the court shall order the civil commitment to be on an inpatient or outpatient placement; provided, however, that if the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department;
         3. If the accused is civilly committed pursuant to division (ii) of this subparagraph and was charged with a nonviolent offense, the court may order civil commitment on an annual basis, but in no case for a period to exceed the maximum period for which the accused could have been sentenced on the most serious nonviolent offense charged or a period to exceed five years, whichever is less, provided that civil commitment shall be reevaluated by a department physician or licensed psychologist on an annual basis;
         4. If the accused is civilly committed pursuant to division (ii) of this subparagraph and was charged with a violent offense, the court may order civil commitment on an annual basis, but in no case for a period to exceed the maximum period for which the accused could have been sentenced on the most serious violent offense charged, provided that civil commitment shall be reevaluated by a department physician or licensed psychologist on an annual basis;
         5. Following the civil commitment pursuant to division (ii) of this subparagraph, a department physician or licensed psychologist shall submit to the court his or her annual evaluation as to whether the civilly committed accused continues to meet the criteria for civil commitment. The court shall mail the annual evaluation to the attorney for the accused or, if pro se, to the accused and to the prosecuting attorney. The court shall review the case annually and enter the appropriate order to renew the civil commitment, to change the civil commitment status, or, in the event the charges are dismissed, to transfer the jurisdiction of the case to the probate court of the jurisdiction of the accused's residence for further civil commitment; provided, however, that after the department submits its annual evaluation, if the state or the accused requests a hearing regarding civil commitment, the court shall hold a hearing on such issue; and
         6. An accused who is civilly committed pursuant to division (ii) of this subparagraph may make an application for release from civil commitment but shall only be released from that civil commitment by order of the court in accordance with the procedures specified in paragraphs (1) through (3) of subsection (f) of Code Section 17-7-131, except that the burden of proof in such release hearing shall be on the state, and if the civilly committed accused is indigent, the accused may petition the court to have an evaluation performed by a physician or licensed psychologist of the accused's choice, and the court may order the cost of such evaluation be paid for by the county.
6. If, at any time, the department's physician or licensed psychologist determines that the accused is mentally incompetent to stand trial but later determines that the accused is mentally competent to stand trial, the court shall be so notified and shall order the accused detained or discharged in accordance with paragraph (1) of subsection (d) of this Code section. Any accused determined by a department physician or licensed psychologist to be mentally competent to stand trial and returned to the court as provided in subsection (d) of this Code section shall again be entitled to file a special plea as provided for in this Code section.
7. If an accused is determined by a department physician or licensed psychologist to be mentally incompetent to stand trial, whether or not civilly committed pursuant to this Code section, the state may file at any time a motion for rehearing on the issue of the accused's mental competency to stand trial. If the state's motion is granted, the case shall proceed as provided in this Code section.
8. Nothing in this Code section shall prevent the accused or the state from seeking a court order for a nondepartment mental competency evaluation of the accused at the cost of the movant. If a nondepartment mental competency evaluation is ordered, the court shall abide by the time frames for trial as set forth in this Code section unless the court determines, for good cause shown, that such time frames require adjustment for a nondepartment evaluation.
9. The "Crime Victims' Bill of Rights," as set forth in Chapter 17 of this title, shall be applicable to any judicial proceeding held pursuant to this Code section, and notice shall be provided to any victim as set forth in such chapter.

(Orig. Code 1863, § 4195; Code 1868, § 4234; Code 1873, § 4299; Code 1882, § 4299; Penal Code 1895, § 951; Penal Code 1910, § 976; Code 1933, § 27-1502; Ga. L. 1977, p. 1293, § 3; Ga. L. 1982, p. 3, § 17; Ga. L. 1995, p. 1250, §§ 1.1, 1.2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2007, p. 663, § 1/SB 190; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2010, p. 286, § 12/SB 244; Ga. L. 2011, p. 372, § 2/HB 421; Ga. L. 2013, p. 294, § 4-16/HB 242; Ga. L. 2017, p. 417, § 3-2/SB 104.)

- Mental capacity as it relates to culpability for criminal acts, § 16-3-2 et seq.

Manner of service of petition for release of person detained in facility pursuant to court order, §§ 37-3-148,37-4-108,37-7-148.

- Pursuant to Code Section 28-9-5, in 2007 and 2008, "or" was deleted at the end of division (a)(3)(A)(ix); "et.seq" was changed to "et seq." in subsection (b) and subparagraph (d)(2)(A); "subparagraph (a)(3)(A)" was substituted for "subparagraph (A) of paragraph (3) of subsection (a)" in the second sentence of subsection (b); and "Chapter 3 or 4 of Title 37" was substituted for "Chapters 3 or 4 of Title 37" near the middle of the introductory language of subsection (d).

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

- Defense of insanity, Federal Rules of Criminal Procedure, Rule 12.2.

- For article, "The Georgia Law of Insanity," see 3 Ga. B.J. 28 (1941). For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004); 58 Mercer L. Rev. 111 (2006). For annual survey of criminal law, see 57 Mercer L. Rev. 139 (2005); 58 Mercer L. Rev. 83 (2006). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note discussing criminal responsibility and mental illness as a defense in Georgia, see 23 Ga. B.J. 538 (1961). For note, "Commitment and Release of Persons Found Not Guilty by Reason of Insanity: A Georgia Perspective," see 15 Ga. L. Rev. 1065 (1981). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 144 (1995). For note and comment, "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," see 23 Ga. St. U.L. Rev. 995 (2007). For comment on Bacon v. State, 222 Ga. 151, 149 S.E.2d 111 (1966), see 18 Mercer L. Rev. 506 (1967).

ANALYSIS

• General Consideration
• Procedure
• Application
• Burden of Proof
• Obligations of Counsel
• Jury Instructions and Responsibilities
• Appeals

General Consideration

Constitutionality.

- Placement of the burden of proof on the defendant to prove incompetence by a preponderance of the evidence does not violate due process. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).

Because the nature of automatic commitment does not bear a reasonable relation to the state's purpose of accurately determining the restorability of individual defendants' competency to stand trial, that aspect of O.C.G.A. § 17-7-130(c) violated due process when applied to the defendants who have been deprived of their liberty based solely on that statutory provision. O.C.G.A. § 17-7-130(c) should be construed as limiting the detention authorized to the reasonable time needed to fulfill the statute's purpose of determining a defendant's competency to stand trial. Carr v. State, 303 Ga. 853, 815 S.E.2d 903 (2018).

Nature of automatic commitment under O.C.G.A. § 17-7-130(c) applicable to all those defendants who had been accused of violent crimes and found to be mentally incompetent to stand trial was held to not bear a reasonable relationship to the state's purpose of accurately determining the restorability of the individual defendants' competency to stand trial; thus, that aspect of § 17-7-130(c) violated due process. McGouirk v. State, 303 Ga. 881, 815 S.E.2d 825 (2018).

- Georgia Supreme Court agreed that indefinite or even unreasonably extended detention under O.C.G.A. § 17-7-130(c) for incompetency to stand trial would be unconstitutional, but the Court does not agree that the statute permits such extended detention. Instead, to avoid that constitutional concern, the Court construes § 17-7-130(c) as limiting the detention the statute authorizes to the reasonable time needed to fulfill the statute's purpose. Carr v. State, 303 Ga. 853, 815 S.E.2d 903 (2018).

Automatic detention without an individualized determination of whether the confinement reasonably advances the government's purpose violated a defendant's right to due process, and the Georgia Supreme Court therefore held that O.C.G.A. § 17-7-130(c) could not be applied constitutionally to defendants who are not already being detained on another, lawful ground. Carr v. State, 303 Ga. 853, 815 S.E.2d 903 (2018).

- Former Code 1933, § 27-1504, which guaranteed that one charged with crime would not be tried while in a condition of insanity, and former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130), which secured to such individual the right to have the question of the individual's mental condition at the time of the trial inquired into before being required to plead to the indictment, are declaratory of the common-law rule which forbids the trial of any person while the person is in a state of insanity. The reason upon which such rule rested at common law, that is, the incapacity of one who is insane to make a rational defense, furnished the guiding principle for their proper application. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960).

Section was declaratory of the common law which forbid the trial of persons while in the state of insanity, that is, incapable of making a rational defense. Cronch v. State, 141 Ga. App. 851, 235 S.E.2d 40 (1977).

For history of former Code 1933, §§ 27- 1502 and 27-1504 (see O.C.G.A. § 17-7-130), see Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

§ 27-1504. - "Mental incompetency" as used in former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130) included those mental states embraced in the terms "lunatic" and "insane person" in former Code 1933, § 27-1504, as those terms all relate solely to the mental ability or capacity of a defendant to intelligently participate in the defendant's trial. Thus, the amendment by Ga. L. 1977, p. 1293, by implication repealed former Code 1933, § 27-1504. If this were not true, a defendant could enter a special plea of mental incompetency under former Code 1933, § 27-1502, another plea of "lunacy" under former Code 1933, § 27-1504, and a third plea of "insanity at the time of trial" under former Code 1933, § 27-1504, and demand a special jury trial on all three issues even though all three relate to the same mental state. No such result was envisioned by the General Assembly. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

Choice between proceeding under § 16-3-2 or § 17-7-130. - Special plea of insanity under former Code 1933, § 26-702 (see O.C.G.A. § 16-3-2) was proper if the defendant became insane since the crime was committed or was insane at the time of the trial. A plea of insanity may be taken advantage of under the general issue under former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130) if the defendant was insane prior to the time the alleged crime was committed or was insane at the time the crime was alleged to have been committed. Orange v. State, 77 Ga. App. 36, 47 S.E.2d 756 (1948).

"Mental competence" relates only to the ability of the defendant, at the time of the trial, to intelligently participate in the defendant's trial. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

- Provision of O.C.G.A. § 17-7-130 authorizing transfer of defendant to the Department of Human Resources applied to the defendant whose incompetency was the result of traumatic brain injury; such transfers are not limited only to cases when incompetency is the result of mental illness or retardation. Georgia Dep't of Human Resources v. Drust, 264 Ga. 514, 448 S.E.2d 364 (1994).

- Even if a habeas corpus petitioner was incompetent at the time of trial and is incompetent today, if the petitioner could be rendered competent in the future (even by forcing the petitioner to take medication), the petitioner could be lawfully tried, convicted, and sentenced to death once again because someone who is mentally competent (sane) when he or she commits a crime is culpable for that offense, even if his or her later incompetency prevents him or her (perhaps only temporarily) from being tried for the offense. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

- Trial court erred in overruling the defendant's objection to the state's asking an expert witness whether the defendant was competent to stand trial because the defense of insanity and defendant's competence to stand trial are separate issues and the state made no showing that the expert's opinion as to defendant's competency to stand trial was relevant to the jury's decision on defendant's plea of not guilty by reason of insanity. Hudson v. State, 273 Ga. 124, 538 S.E.2d 751 (2000).

- Constitutional guarantees require that a trial court inquire into competency, even when state procedures for raising competency are not followed, if evidence of incompetence comes to the court's attention. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

While the statutory right to a special jury under O.C.G.A. § 17-7-130 can be waived, the actual issue of present incompetence must be addressed if there is evidence of incompetence which manifests itself during the proceedings. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

Trial court must conduct, sua sponte, a competency hearing when the information known to the trial court at the time of the trial or plea bargain is sufficient to raise a bona fide doubt regarding the defendant's competence. White v. State, 202 Ga. App. 424, 414 S.E.2d 328 (1992).

Requirement of a competency hearing is applicable even when the doubt regarding a defendant's competency arises during the course of a trial. White v. State, 202 Ga. App. 424, 414 S.E.2d 328 (1992).

When the defendant was convicted of various crimes but the trial court committed harmful error by failing to conduct an adequate inquiry into the defendant's competency, upon remand, if the court decides that a meaningful competency determination is not possible, the defendant is entitled to a new trial on the offenses charged and the defendant may again raise the issue of incompetence by special plea pursuant to O.C.G.A. § 17-7-130. Brogdon v. State, 220 Ga. App. 31, 467 S.E.2d 598 (1996).

Trial court did not err by failing to sua sponte rule on the defendant's competency as the defendant exhibited no unusual behavior during the proceedings, understood the nature and object of the proceedings, participated in the proceedings, and assisted counsel with the defense; the defendant failed to show that being a 14-year-old, standing alone, rendered the defendant incapable of understanding and participating in the proceedings. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005).

Part of judgment ordering the defendant's automatic detention for evaluation as to competency to stand trial under O.C.G.A. § 17-7-130(c) was vacated because it was necessary for the trial court to exercise the court's discretion in deciding whether the defendant should be committed into custody for evaluation or should be evaluated on an outpatient basis. McGouirk v. State, 303 Ga. 881, 815 S.E.2d 825 (2018).

- Relief afforded by a plea of insanity, if sustained, is of the nature of the relief afforded by a plea in abatement, which can only operate to suspend or put off further proceedings, as distinguished from an absolute and final bar to further prosecution. Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969).

Defense of not guilty by reason of insanity differs from capacity to make a rational defense in that it is a part of the general issue as made by the defendant in the defendant's plea of not guilty. Cronch v. State, 141 Ga. App. 851, 235 S.E.2d 40 (1977).

- Superior court did not err by finding that the defendant's competency could be determined retroactively to the time of trial because the defendant expressly conceded, and indeed urged, that the defendant's competency at the time of trial could be retroactively determined and that there would be sufficient evidence for the superior court to make such determination; the defendant presented evidence at the competency hearing, and on which the defendant relied upon in the defendant's appeal, that the defendant was in fact incompetent at the time of the defendant's criminal trial; and the defendant waived the right to complain on appeal about hearing the issue of the defendant's competency. Tye v. State, 298 Ga. 474, 782 S.E.2d 10 (2016).

- Trial court did not err in denying the defendant's motion for a directed verdict under O.C.G.A. § 9-11-50 in the defendant's competency trial because the evidence on competency was in conflict; even though the defendant's expert witness opined that the defendant was not competent to stand trial, the state's expert testified that the defendant was competent to do so. Smith v. State, 312 Ga. App. 174, 718 S.E.2d 43 (2011).

Cited in Scoggins v. State, 150 Ga. 72, 102 S.E. 520 (1920); Griffin v. State, 195 Ga. 368, 24 S.E.2d 399 (1943); Cardin v. Harmon, 217 Ga. 737, 124 S.E.2d 638 (1962); Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1 (1968); Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972); Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975); Myers v. State, 143 Ga. App. 195, 237 S.E.2d 662 (1977); Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980); Standridge v. State, 158 Ga. App. 482, 280 S.E.2d 850 (1981); Morrow v. State, 162 Ga. App. 183, 290 S.E.2d 137 (1982); Norris v. State, 250 Ga. 38, 295 S.E.2d 321 (1982); Brown v. State, 250 Ga. 66, 295 S.E.2d 727 (1982); Lindsey v. State, 252 Ga. 493, 314 S.E.2d 881 (1984); Davenport v. State, 170 Ga. App. 667, 317 S.E.2d 895 (1984); Edison v. State, 256 Ga. 67, 344 S.E.2d 231 (1986); Partridge v. State, 256 Ga. 602, 351 S.E.2d 635 (1987); Carter v. State, 257 Ga. 510, 361 S.E.2d 175 (1987); Brown v. State, 261 Ga. 66, 401 S.E.2d 492 (1991); Callaway v. State, 208 Ga. App. 508, 431 S.E.2d 143 (1993); Colwell v. State, 273 Ga. 634, 544 S.E.2d 120 (2001); Trammel v. Bradberry, 256 Ga. App. 412, 568 S.E.2d 715 (2002); Wafford v. State, 283 Ga. App. 154, 640 S.E.2d 727 (2007); Brower v. State, 334 Ga. App. 262, 779 S.E.2d 32 (2015).

Procedure

Section provides right of inquiry into mental condition before pleading.

- This section secured to a person charged with a crime the right to have the question of the person's mental condition at the time of the trial inquired into before being required to plead to the indictment. Baughn v. State, 100 Ga. 554, 28 S.E. 68, aff'd sub nom. Nobles v. Georgia, 168 U.S. 398, 18 S. Ct. 87, 42 L. Ed. 515 (1897); Martin v. State, 147 Ga. App. 173, 248 S.E.2d 235 (1978).

If it be contended that the defendant is insane at the time of the defendant's trial, defendant has the right to have the question of defendant's mental condition at that time inquired into before being required to plead to the indictment. Humphrey v. State, 46 Ga. App. 720, 169 S.E. 53 (1933).

- Courts focus on three factors in determining whether the trial court violated the defendant's procedural due process rights by failing to hold sua sponte a competency hearing: (1) evidence of the defendant's irrational behavior; (2) the defendant's demeanor at trial; and (3) prior medical opinion regarding the defendant's competence to stand trial. White v. State, 202 Ga. App. 424, 414 S.E.2d 328 (1992).

Trial court was not required to conduct a hearing to determine the defendant's competence to stand trial after the defendant withdrew the defendant's plea of mental incompetence, and nothing before the trial court raised any question about the defendant's competence to stand trial. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41, cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991).

Since the accused made no special plea pursuant to O.C.G.A. § 17-7-130 raising the issue of the accused's competency at the time of trial, and there was no evidence in the record raising sufficient doubt before or during the trial as to the accused competency, the due process requirement that the trial court conduct a competency hearing was not triggered. Huzzie v. State, 236 Ga. App. 192, 512 S.E.2d 5 (1999).

Trial court did not err in denying counsel's pretrial request for a competency evaluation of the defendant as the defendant did not engage in any irrational behavior prior to the start of the trial; the defendant's demeanor did not exhibit incompetency and the defendant responded appropriately to questions. Stodghill v. State, 351 Ga. App. 744, 832 S.E.2d 891 (2019).

- Based on the finding of incompetency, the trial court failed to follow the requisite procedure set forth in O.C.G.A. § 17-7-130 to later find the defendant competent because, after the court received the evaluation stating the defendant's competency was restored, the trial court briefly touched on the defendant's competency at the second Faretta hearing, but failed to hold a bench trial on competency as required by the statute. Beach v. State, 351 Ga. App. 237, 830 S.E.2d 565 (2019).

- Defendant's request that a competency hearing be mandated for all children under 17 who faced trial in the Georgia Superior Court under O.C.G.A. § 15-11-28(b)(2)(B) was rejected as any changes to Georgia's statutory provisions for trying certain juvenile offenders as adults had to come from the Georgia legislature. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005).

Trial court erred by failing to follow the procedure set forth in O.C.G.A. § 17-7-130(d) by not holding a hearing on the defendant's competency because once defense counsel informed the trial court that the defendant, who had a long history of psychotic episodes, could not communicate with counsel in complete sentences or otherwise, it was obligated to hold a hearing on the defendant's competency to stand trial. Crawford v. State, 355 Ga. App. 401, 844 S.E.2d 294 (2020).

Trial court did not err by failing to conduct a hearing sua sponte to determine the defendant's competence to stand trial since the defendant did not file a plea of incompetence to stand trial and the defendant's testimony and the court-ordered evaluation showed that the defendant understood the nature and object of the proceedings against the defendant and was capable of assisting the defendant's attorney with a defense. Meders v. State, 260 Ga. 49, 389 S.E.2d 320 (1990), cert. denied, 506 U.S. 837, 113 S. Ct. 114, 121 L. Ed. 2d 71 (1992).

In a prosecution for felony murder and aggravated assault, neither the defendant's conduct at trial or before trial, nor any medical evidence, required the trial court, sua sponte, to conduct a hearing on the defendant's competency because there was no evidence of irrational behavior or unusual demeanor, nor was there any medical opinion about competence which would have caused the trial court to make further inquiry about competency. Traylor v. State, 280 Ga. 400, 627 S.E.2d 594 (2006).

After having considered a competency evaluation of the defendant, the trial court concluded, without further inquiry, that the defendant was competent, and absent evidence that counsel never filed a special plea of not guilty by reason of insanity or incompetence to stand trial, the appeals court found no additional inquiry was necessary; thus, given that the record did not demonstrate that the defendant's behavior at trial or medical history should have caused the trial court to, sua sponte, conduct a competency hearing, no error resulted from failing to hold a competency hearing. Freeman v. State, 282 Ga. App. 185, 638 S.E.2d 358 (2006).

- When the defendant, who had an IQ of 49, was determined by the court to be mentally incompetent to waive a plea of not guilty, the trial court erred in not ordering a hearing on defendant's competence to stand trial. Holloway v. State, 257 Ga. 620, 361 S.E.2d 794 (1987).

In a motion for a new trial motion, which raised a substantive claim of incompetency and presented expert evidence, it was error for the trial court to require the defendant to prove incompetency by clear and convincing evidence before further hearing on the issue and a decision on the substantive claim was warranted as this claim could be raised in a new trial motion and the defendant's burden of proof was by a preponderance of the evidence. Traylor v. State, 280 Ga. 400, 627 S.E.2d 594 (2006).

With regard to a defendant's convictions for aggravated assault, terroristic threats, and burglary, the judgment of conviction was reversed and the case was remanded to the trial court since the trial court erred by failing to conduct a competency hearing. Although defense counsel never filed a written plea that the defendant was mentally incompetent to stand trial, based on defense counsel's detailed concerns regarding the defendant's competency and the defendant's absolute refusal to be evaluated, the trial court should have continued the matter and conducted a competency hearing. Phelps v. State, 296 Ga. App. 362, 674 S.E.2d 620 (2009).

Special trial on issue of sanity is in nature of a civil proceeding with the burden resting upon the defendant to show insanity. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

- If the trial court made a sub silentio determination that the defendant was competent to stand trial, the court was authorized to accept the defendant's plea of guilty but mentally ill, although the better course of action would have been for the trial court to make an explicit finding of competency to stand trial or for the defendant to have withdrawn the defendant's plea of mental incompetency, such specific findings were not legally required as long as some determination was made on the issue of competence. Hughes v. Hall, 276 Ga. 382, 578 S.E.2d 888 (2003).

- Issue raised by a special plea of insanity is whether the defendant is capable at the time of the trial of understanding the nature and object of the proceedings going on against the defendant and rightly comprehends the defendant's own condition in reference to such proceedings, and is capable of rendering the defendant's attorney such assistance as a proper defense to the indictment returned against the defendant demands. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960); Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980).

- Issue raised by a special plea of insanity at the time of trial is not whether the defendant can distinguish between right and wrong. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960); Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977).

- Special plea of insanity at the time of trial raises the question of whether the defendant is mentally competent at that time to understand the nature and object of the proceedings against the defendant, whether the defendant comprehends the defendant's own condition in reference to the proceedings, and whether the defendant is capable of rendering the defendant's attorney proper assistance; the defendant must, in other words, be aware of the charge, aware of the charge's consequences, and able to communicate with the defendant's lawyer. Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981).

It is error for trial judge to submit in charge to the jury the "right and wrong" test as the proper basis for determining the competency of the defendant to stand trial on the indictment for murder on the issue made by the special plea of insanity. Brown v. State, 215 Ga. 784, 113 S.E.2d 618 (1960).

Only one pretrial issue relates to the ability or capacity of a defendant to participate in the defendant's trial; that issue was defendant's mental competence. Echols v. State, 149 Ga. App. 620, 255 S.E.2d 92 (1979).

Whether the defendant is guilty or not guilty of the crime charged is not relevant at the trial of a special plea of insanity. Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977).

Test on a special plea of insanity is whether or not the movant is incompetent to stand trial at the particular time of the trial of the special plea and not whether or not the defendant has a lack of memory relating to some prior specific event. Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980).

- One is not criminally responsible when, though one has reason sufficient to distinguish between right and wrong as to a particular act about to be committed, yet, in consequence of some delusion, the will is overmastered and there is no criminal intent, provided that the act itself is connected with the peculiar delusion under which one is laboring. Hargroves v. State, 179 Ga. 722, 177 S.E. 561 (1934).

- Special plea of insanity provided by this section must allege that the accused was insane at the time of trial and the issue thus made must be tried by a special jury. If found to be true, the court would order the defendant to be delivered to the superintendent of the Milledgeville State Hospital (now Department of Human Resources). Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953).

Object of the plea of insanity (now mental incompetency) is to prevent a trial on the merits, and though it may cover insanity (now mental incompetency) at the time of the act, the plea's essence is that the prisoner is insane (now mentally incompetent) at the trial, and the plea must contain that allegation. Long v. State, 38 Ga. 491 (1868).

Mental incompetency at time offense committed is provable under the general issue. Danforth v. State, 75 Ga. 614 (1885); Carr v. State, 96 Ga. 284, 22 S.E. 570 (1895).

- Since this section was not a criminal sanction, and the proceeding was civil in nature, the state may call the defendant for purpose of cross-examination on the trial of the special plea of insanity. However, no question may be propounded to the accused or inquiry be made upon the hearing touching the matter of the defendant's guilt or innocence. Bacon v. State, 222 Ga. 151, 149 S.E.2d 111 (1966), commented on in 18 Mercer L. Rev. 506.

- Absent a special plea of insanity, there is no mandatory duty on the trial judge to impanel a special jury to determine the issue of mental incompetency or insanity. Ricks v. State, 240 Ga. 853, 242 S.E.2d 604 (1978).

If a special plea is not filed, then the court is not bound by the procedures set forth in O.C.G.A. § 17-7-130. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

- Trial court did not abuse the court's discretion by excusing a potential juror during jury selection for a competency hearing and by failing to excuse a second juror because the first juror expressed an inability to judge the defendant's competency on the merits, and after the second juror expressed a willingness to be fair, the trial court found that the juror had no fixed opinion about the defendant's guilt. Smith v. State, 312 Ga. App. 174, 718 S.E.2d 43 (2011).

- Failure to observe procedures adequate to protect an accused's right not to be tried or convicted while incompetent to stand trial deprives the accused of the accused's due process right to a fair trial. Ricks v. State, 240 Ga. 853, 242 S.E.2d 604 (1978).

In addition to the common law and statutory rights of a defendant not to be tried while incompetent, the accused also has a constitutional right to not be put on trial while incompetent, and procedural due process requires the trial court to afford the accused an adequate hearing on the issue of competency. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

- If there is no special plea of insanity, this section, requiring a special trial of that issue when a special plea is filed, is not applicable and the issue of insanity can be raised and tried under the plea of general issue of not guilty. Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967).

- If a defendant fails to enter a special plea of incompetency to stand trial, instead entering only a plea of not guilty by reason of insanity, the defendant puts in issue the defendant's sanity at the time of commission of the offense, not the defendant's competency to stand trial. Chenault v. Stynchcombe, 546 F.2d 1191 (5th Cir.), cert. denied, 434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 158 (1977).

- If a motion is made to have the defendant's mental competency examined by a psychiatrist, but no special plea of insanity is filed, the trial court under such circumstance does not err in failing to have a judicial determination made of the defendant's sanity prior to the trial on the indictment. Coffee v. State, 230 Ga. 123, 195 S.E.2d 897 (1973).

If no special plea of insanity is filed, the granting of the motion for a psychiatric examination is within the sound discretion of the trial court. This rule attaches in probation revocation hearings as well as in criminal proceedings. Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980).

Since no special plea was brought before the court, the trial court did not abuse the court's discretion in failing, sua sponte, to order a special hearing on mental competency on the basis of the testimony presented at trial. Dowdy v. State, 169 Ga. App. 14, 311 S.E.2d 184 (1983).

- When a motion for a continuance to procure further psychiatric examination is based on evidence that reasonably indicates mental instability on the part of the defendant at the time of the offense or at the time of trial and when the motion is not made for the mere purpose of delay and avoidance of prosecution, the interests of justice might be better served if the trial court's discretion were exercised in favor of the defendant, even when no special plea of insanity has been filed by counsel. Morgan v. State, 135 Ga. App. 139, 217 S.E.2d 175, rev'd on other grounds, 235 Ga. 632, 221 S.E.2d 47, overruled on other grounds, Dent v. State, 136 Ga. App. 366, 221 S.E.2d 228, overruled on other grounds, Davis v. State, 136 Ga. App. 749, 222 S.E.2d 188 (1975).

- If a plea of insanity is not sustained the law is silent as to further action, clearly implying that the state is free to proceed with the trial. Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969).

- After a special plea of insanity has been decided by a jury adversely to the party indicted, it is not error for the trial judge to proceed with the trial of the main case. Watson v. State, 229 Ga. 787, 194 S.E.2d 407 (1972).

- Defendant may invoke the defendant's privilege against self-incrimination, refuse to submit to an examination by an independent expert, and thereby forego the right to present expert testimony on the issue of insanity. Strickland v. State, 257 Ga. 230, 357 S.E.2d 85 (1987).

Questions going to guilt or innocence may be objectionable in a special proceeding to determine the sanity or insanity of a criminal defendant. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

- Since defense counsel did not file a special pretrial plea of insanity or mental incompetency to be tried pursuant to O.C.G.A. § 17-7-130, the trial court had no mandatory duty to impanel a special jury to determine that issue pursuant to defense counsel's midtrial motion for a psychiatric evaluation. Lightsey v. State, 188 Ga. App. 801, 374 S.E.2d 335 (1988).

Trial court need not have held a separate hearing on competency in the absence of a special plea of incompetency by a defendant when the trial court had been concerned enough about the issue of competency to independently order an evaluation of the defendant and when there had been testimony by two experts as to a defendant's competency. The fact that the court allowed the trial to go forward after testimony concerning defendant's competency was in effect a sub silentio finding that defendant was competent. Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986).

Superior court has authority to civilly commit a pretrial detainee who is incompetent to stand trial as long as the court utilizes the criteria and procedures set forth in O.C.G.A. Ch. 3, T. 37 in making the court's decision. Department of Human Resources v. Long, 217 Ga. App. 763, 458 S.E.2d 914 (1995).

- Habeas court correctly concluded that the petitioner's claim that the petitioner was tried while incompetent was barred by procedural default under O.C.G.A. § 9-14-48(d) because the claim was not pursued to a conclusion at trial and was not raised on direct appeal; for purposes of determining whether the procedural default doctrine will apply, there is no meaningful distinction between the failure to exercise a defendant's right to have his or her competence determined in the trial court and the failure to exercise a defendant's additional right to have a competency determination evaluated on appeal, and substantive claims of incompetence to stand trial will continue to be subject to procedural default in Georgia. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Application

Refusal to provide defendant with psychiatrist for hearing on plea.

- Hearing upon a special plea of insanity is a proceeding of a civil nature in which the burden rests on the defendant to produce evidence of the defendant's insanity. Thus, the refusal of a trial court to provide for examination by and assistance to the accused by a competent psychiatrist selected by the accused, discloses no violation of due process or error for any other reason. May v. State, 146 Ga. App. 416, 246 S.E.2d 432 (1978).

When a defendant's "rap sheet" failed to disclose an earlier conviction and court order finding the defendant incompetent to stand trial, and the defendant did not inform the defendant's attorney of the fact, the trial court in this action had no reason to conduct an investigation of the defendant's competence sua sponte, and the court's denial of funds for an independent psychiatrist was not error. Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990), cert. denied, 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991).

- It is not error for a trial court to deny the defendant's motion requesting that the defendant be examined by a psychiatrist at county expense when the defendant has not entered a special plea of insanity at the time of trial. Huguley v. State, 120 Ga. App. 332, 170 S.E.2d 450 (1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 66 (1970).

- Trial court was not compelled to direct a psychiatric examination when there was no showing that the defendant would not be able to intelligently participate at trial or that the defendant's sanity would be a significant issue at trial. Johnson v. State, 209 Ga. App. 514, 433 S.E.2d 717 (1993).

- When a person charged with a criminal offense files a special plea of insanity under this section, and on such plea was found insane and committed to the Milledgeville State Hospital (now Department of Human Resources), and when after such commitment the person left the hospital without permission, and was later taken into custody by a sheriff for the purpose of being returned to such institution, the person cannot maintain a petition for the writ of habeas corpus on the ground that the person had regained sanity, without showing that the person pursued or attempted to pursue the statutory method of obtaining a release from the institution, or without alleging and proving some valid reason for the person's failure to invoke such remedy. Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945).

- Requirement that the defendant be given a psychiatric evaluation may be satisfied by evaluation by a doctor qualified to give such opinion who may not be a board certified psychiatrist; thus, under these circumstances there is no violation of due process in the refusal of the trial judge to appoint a psychiatrist to make a pretrial examination or otherwise assist an indigent accused even when there has been a special plea of insanity. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

- Although prior adjudications by the probate court and the superior court raised a presumption of the defendant's mental incompetency, the defendant's administrative release by the Department of Human Resources under O.C.G.A. § 17-7-130 cancelled that presumption of incompetency and raised a presumption of competency. Newman v. State, 258 Ga. 428, 369 S.E.2d 902 (1988).

- If the defendant pleads insanity at the time of the crime and as a defense introduces evidence sufficient to overcome the presumption of sanity, and there is no evidence that the defendant was sane at the time of the commission of the offense, a verdict of guilty is unauthorized. Brooks v. State, 157 Ga. App. 650, 278 S.E.2d 463, aff'd, 247 Ga. 744, 279 S.E.2d 649 (1981).

- In special proceeding to determine sanity, it is not error for the trial court to allow an agent of the Georgia Bureau of Investigation to state underlying reasons for the agent's opinion that the criminal defendant is sane, when the evidence is not offered for the purpose of showing criminal misconduct or to prove the truth of the defendant's admissions but, instead, is offered to indicate the defendant's degree of understanding and mental condition. Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981).

- When there was no meritorious claim of error in the trial itself, error in failure to provide a hearing on the issue of the defendant's competence to stand trial was not such an error as required a new trial on the question of guilt or innocence, but rather only required that the case be remanded for a determination of defendant's competence at the time of defendant's trial by holding a post-conviction hearing. Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982).

Fact that the defendant gives way to emotional outbursts, is suicidal, or considers oneself insane is insufficient to demand reversal of the decision when the judgment against plea of insanity is being reviewed. Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981).

- It was apparent that the testimony of the state's expert witness, finding the defendant competent to stand trial, supported the special jury's verdict of competency. Because there was some evidence in support of that verdict of competent to stand trial, the verdict had to be affirmed. Sims v. State, 267 Ga. App. 572, 600 S.E.2d 613 (2004).

Evidence was sufficient to support a special jury's finding that a defendant was competent to stand trial. Extensive testimony of doctors and hospital staff showed that the defendant was a longtime alcoholic, did not have a major mental illness, understood the legal proceedings, and could assist counsel at trial. Hester v. State, 283 Ga. 367, 659 S.E.2d 600 (2008).

Defendant did not file a special plea of incompetence to stand trial. As the defendant's colloquy with the trial judge indicated that the defendant understood the charges, the possible punishment, and the trial process, and that the defendant was helping counsel to prepare the defense; and as the psychologist who conducted the first competency evaluation opined that the defendant was probably exaggerating symptoms of incompetency, the defendant was properly found competent to stand trial and was not entitled to a second competency evaluation. Wadley v. State, 295 Ga. App. 556, 672 S.E.2d 504 (2009), cert. denied, No. S09C0811, 2009 Ga. LEXIS 255 (Ga. 2009).

Testimony from the state's forensic psychology expert that the defendant understood in detail the nature and object of the proceedings and the defendant's role in the proceedings and that the defendant was able, if not always inclined, to assist counsel supported a finding that the defendant was competent to stand trial. Slaughter v. State, 292 Ga. 573, 740 S.E.2d 119 (2013).

- Trial court erred by refusing to conduct a hearing or to rule on the defendant's motion for a new trial based upon the court's finding that the defendant was, at that time, mentally incompetent and unable to assist counsel in challenging the conviction, as the defendant's current mental incompetence provided no logical basis to delay a post-conviction proceeding to address whether the defendant was incompetent at trial, whether the trial court should have been on notice of the incompetency and conducted a hearing during trial, or whether the trial counsel was ineffective for failing to timely raise the competency issue. Florescu v. State, 276 Ga. App. 264, 623 S.E.2d 147 (2005).

Burden of Proof

Relevance and proof of mental condition at time of offense.

- To show the insanity of the accused at the time of the commission of the offense it is relevant to introduce testimony showing the mental condition of the accused at the time of the offense, and the accused's mental condition before and after the offense may be proved as tending to show the accused's condition at the time of the offense. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

- On the issue of insanity (now mental incompetency), the burden of proof rests upon the defendant who alleges the insanity. Carter v. State, 56 Ga. 463 (1876); Keener v. State, 97 Ga. 388, 24 S.E. 28 (1895).

Trial of a special plea of insanity is in the nature of a civil proceeding and the burden of producing evidence is on the defendant. Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980).

In every case there is a presumption that the accused is sane. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

Presumption of sanity may be overcome by a preponderance of the evidence. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

- Evidence was sufficient to conclude that the defendant failed to prove that the defendant was incompetent to stand trial because the state's expert witness found that, based on the defendant's exchanges during a police interview, the felony murder concept was explained to the defendant numerous times and the defendant's responses indicated that the defendant understood; the fact that the defendant did not think that the defendant should be held responsible for the victim's death did not mean that the defendant should not be held responsible or that it rendered the defendant incapable of understanding the situation; and there was no medical support for the conclusion that the defendant was not competent to stand trial in 2008. Tye v. State, 298 Ga. 474, 782 S.E.2d 10 (2016).

Obligations of Counsel

Counsel not ineffective for not raising issue.

- Defendant failed to show that the defendant's counsel was ineffective in violation of U.S. Const., amend. 6 for failing to pursue a request for a psychological examination, an insanity defense under O.C.G.A. § 16-3-2, and asserting 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's trial counsel performed deficiently in not seeking expert assistance in evaluating the defendant's mental condition at the time of the shooting and at the time of trial because the defendant was hospitalized in 1996 after stabbing the same man that the defendant murdered; and, in 1996, the defendant reported hearing a voice telling the defendant to kill for which the defendant received antipsychotic medication; however, counsel's deficient performance was not prejudicial as the defendant did not show that the jury would have returned a verdict of not guilty by reason of insanity because the defendant did not receive any diagnosis of or treatment for mental illness for more than a decade before the current crimes. Scott v. State, 301 Ga. 573, 802 S.E.2d 211 (2017).

- Because the defendant did not demonstrate that the defendant was prejudiced by counsel's failure to reiterate a request for a competency evaluation, the defendant did not demonstrate that counsel was ineffective for failing to seek a continuance to pursue such a request. Stodghill v. State, 351 Ga. App. 744, 832 S.E.2d 891 (2019).

If insanity of the defendant is known to defendant's counsel, then counsel has a professional, moral, and legal duty to file a plea of insanity as provided by law. If unknown, then it can be raised by a ground of a motion for a new trial by a proper showing. Huguley v. State, 120 Ga. App. 332, 170 S.E.2d 450 (1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 66 (1970).

- It is not legally permissible for the state to call the defendant's counsel as a witness for the purpose of extracting facts and counsel's opinion as to the client's competency which is gained from the counsel's participation in the attorney-client relationship with the defendant. Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482 (1986).

Better practice is not to charge the jury on the provisions of this section. Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975), rev'd on other grounds, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

- 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. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981).

Jurors are not bound by opinions of either lay witnesses or expert witnesses as to question of sanity and jurors may rely on the basic presumption existing under Georgia law. Brooks v. State, 157 Ga. App. 650, 278 S.E.2d 463, aff'd, 247 Ga. 744, 279 S.E.2d 649 (1981).

There was insufficient reason for jury to disregard the unanimous opinions of psychiatric experts that the defendant, who suffered from schizophrenia, was incompetent to stand trial. Defendant was therefore denied due process of law when the defendant was tried. Wallace v. Kemp, 757 F.2d 1102 (11th Cir. 1985).

If no question of competency to stand trial is ever raised, the failure to charge the jury on O.C.G.A. § 17-7-130 is not error. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984).

- 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).

Appeals

Appeal from judgment.

- Plea of insanity at the time of trial is an interlocutory judgment and not subject to direct appeal without a timely certificate from the trial court. Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969).

When a plea of insanity was granted and the defendant was transferred to the Department of Human Resources (DHR), the DHR could appeal directly without following the interlocutory appeal procedure. Georgia Dep't of Human Resources v. Drust, 264 Ga. 514, 448 S.E.2d 364 (1994).

- Indicted party has no right to direct review from a finding against the party's special plea of insanity without a certificate of the trial judge. Watson v. State, 229 Ga. 787, 194 S.E.2d 407 (1972).

- Court of Appeals will not set aside a verdict finding against such a plea unless the evidence demands a finding in its favor. Polk v. State, 19 Ga. App. 332, 91 S.E. 439 (1917).

Upon remand in a criminal case, on the issue of the defendant's competency, the burden first fell upon the state to show there was sufficient evidence to make a meaningful determination of competency at the time of trial, and if the court ruled that a determination of the defendant's competency at the time of trial was not presently possible, then a new trial had to be granted, but if the court decided such a determination was possible, the issue of competency to stand trial had to be tried and the defendant had the burden to show incompetency by a preponderance of the evidence; the sole issue to be presented to the fact-finder was that of mental competency; evidence as to guilt was irrelevant, and if the fact-finder found that the defendant was not mentally competent at the time of trial, the verdict in the main case had to be set aside, but if the defendant failed by a preponderance of the evidence to prove incompetence at the time of trial, the verdict of guilty would stand. Traylor v. State, 280 Ga. 400, 627 S.E.2d 594 (2006).

- "Any evidence" standard of appellate review employed by the court of appeals was improper. The appropriate standard of appellate review is whether after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that the defendant was incompetent to stand trial, overruling Stowe v. State, 272 Ga. 866, 536 S.E.2d 506 (2000), Pope v. State, 185 Ga. App. 547, 362 S.E.2d 123 (1987), and any other cases in conflict; therefore, the defendant's conviction was reversed. Sims v. State, 279 Ga. 389, 614 S.E.2d 73 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Instructions to physician regarding insanity of one convicted of a capital felony.

- In view of the fact that the inquiry under former Code 1933, § 27-2602 (see O.C.G.A. § 17-10-61) was directed to the alleged insanity occurring subsequent to the conviction, the definitions of insanity in former Code 1933, §§ 79A-9917 and 79A-9918 (see O.C.G.A. §§ 16-3-2 and16-3-3) were inapplicable and should not be given in written instructions to physicians appointed pursuant to former Code 1933, § 27-2602. Those instructions should inform the physicians that the issue was the present sanity of the individual and should be determined on the basis of whether the individual is capable of presently understanding the nature and object of the proceedings going on against the individual and rightly comprehends the individual's own condition in reference to such proceedings, and was capable of rendering the individual's attorneys such assistance as a proper defense to the proceedings preferred against the individual demands. Since the basic issue is the individual's sanity at a time subsequent to conviction, or, in effect, the individual's present sanity, the appropriate test should be that as employed upon a special plea of insanity under former Code 1933, § 27-1502 (see O.C.G.A. § 17-7-130). 1976 Op. Att'y Gen. No. 76-123.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 50 et seq.

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

Adequacy of Quasi-Miranda Warning Prior to Involuntary Civil Commitment, 40 POF2d 733.

Wrongful Confinement to a Mental Health or Developmental Disabilities Facility, 44 POF3d 217.

- Constitutionality of statutes relating to determination of plea of insanity in criminal case, 67 A.L.R. 1451.

Judicial declaration of sanity, made after alleged offense but before acquittal on ground of insanity at time of offense, as affecting duty of court to commit defendant to asylum for insane, 88 A.L.R. 1084.

Admissibility of evidence of reputation on issue of mental condition, or testamentary or contractual incapacity or capacity, 105 A.L.R. 1443.

Investigation of present sanity to determine whether accused should be put, or continue, on trial, 142 A.L.R. 961.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

Counsel's right, in consulting with accused as client, to be accompanied by psychiatrist, psychologist, hypnotist, or similar practitioner, 72 A.L.R.2d 1120.

Release of one committed to institution as consequence of acquittal of crime on ground of insanity, 95 A.L.R.2d 54.

Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714.

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

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

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.

Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 1043.

Power of court, in absence of statute, to order psychiatric examination of accused for purpose of determining mental condition at time of alleged offense, 17 A.L.R.4th 1274.

Competency to stand trial of criminal defendant diagnosed as "mentally retarded" - modern cases, 23 A.L.R.4th 493.

Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding, 26 A.L.R.4th 995.

Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern state cases, 33 A.L.R.4th 1062.

Pyromania and the criminal law, 51 A.L.R.4th 1243.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

"Guilty but mentally ill" statutes: validity and construction, 71 A.L.R.4th 702.

Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

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.

- 40 Am. Jur. 2d, Homicide, § 96 et seq.

42 Am. Jur. 2d, Infants, § 120 et seq.