Scott Anthony Perkins v. State

• Court: Court of Appeals of Georgia
• Decided: June 24, 2014
• Docket: A14A0339
• Status: Published

Opinion

SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

June 24, 2014

In the Court of Appeals of Georgia A14A0339. PERKINS v. THE STATE.

ANDREWS, Presiding Judge.

Scott Anthony Perkins was found guilty by a jury of multiple counts of

aggravated child molestation, aggravated sodomy, and child molestation, plus one

count of enticing a child for indecent purposes – all stemming from allegations that

he committed these offenses against his two minor stepsons. On appeal from the

judgment of conviction entered by the trial court, Perkins does not challenge the

sufficiency of the evidence to support the convictions. Perkins seeks a new trial on

the basis: (1) that his trial counsel was ineffective because counsel failed to

investigate and raise the issue of his mental health and failed to request a jury charge

on the issue of whether he was guilty but mentally ill; (2) that the trial court erred by

failing to sua sponte order an evaluation of his mental health and charge the jury that it could render a verdict of guilty but mentally ill; and (3) that the trial court erred by

considering a pre-sentence report that was not made known to him before it was

submitted to the trial court. For the following reasons, we find no reversible error and

affirm.

1. To prevail on his claim of ineffective assistance,

[Perkins] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC[t] 2052, 80 LE2d 674) (1984). To show that the performance of his [trial counsel] was deficient, [Perkins] must prove that [counsel] performed h[is] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC[t] 2574, 91 LE2d 305) (1986). And to show that he was prejudiced by the performance of his lawyer, [Perkins] must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC[t] 1495, 146 LE2d 389) (2000). This burden, though not impossible to carry, is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C).

Arnold v. State, 292 Ga. 268, 269-270 (737 SE2d 98) (2013).

Perkins did not assert as a defense at trial that he was not guilty because he was

legally insane or otherwise mentally incompetent at the time of the charged offenses

(see OCGA §§ 16-3-2; 16-3-3; Perkins v. Hall, 288 Ga. 810, 825 (708 SE2d 335)

2 (2011)), nor did he assert a special plea that he was mentally incompetent to stand

trial (see OCGA § 17-7-130 (b)). The State produced testimony at trial from one of

the minor victims that he was molested by Perkins; additional evidence that Perkins

was guilty of the charged offenses in testimony (pursuant to former OCGA § 24-3-16)

from the mother, father, and counselors of both victims as to statements made to them

by the victims; and evidence of Perkins’s own admission of guilt in a statement he

gave to police. Perkins testified in his defense at trial and denied that he committed

any of the charged acts.

Perkins seeks a new trial on the basis that trial counsel was ineffective because

counsel failed to evaluate his mental health. He points out facts known to trial counsel

that showed he had been diagnosed prior to the charged offenses with bipolar

disorder; that after the offenses he told police he “need[ed] help”; and that he had an

angry disposition and had been physically and verbally abusive toward the minor

victims and his wife. On these facts, Perkins claims that, if counsel had raised and

investigated evidence that he had a mental health issue, there was a reasonable

probability that the result of the trial would have been different because: (1) he would

have been entitled to a jury charge on the issue of whether he was guilty but mentally

ill; (2) the jury would have reached a verdict of guilty but mentally ill rather than

3 guilty; and (3) on the basis of the guilty but mentally ill verdict, he would have been

entitled under OCGA § 17-7-131 (g) (1) to be committed to a penal facility where he

could receive treatment for his mental illness.

Under OCGA §17-7-131 (b) (1), in all felony cases “in which the defense of

insanity is interposed,” the jury (or the court in a bench trial) shall find whether the

defendant is guilty, not guilty, not guilty by reason of insanity at the time of the

crime, guilty but mentally ill at the time of the crime, or guilty but mentally retarded.

Moreover,

[i]n all criminal trials in any of the courts of this state wherein an accused shall contend that he was insane or otherwise mentally incompetent under the law at the time the act or acts charged against him were committed, the trial judge shall instruct the jury that they may consider, in addition to verdicts of “guilty’ and “not guilty,” the additional verdicts of “not guilty by reason of insanity at the time of the crime,” “guilty but mentally ill at the time of the crime,” and “guilty but mentally retarded.”

OCGA § 17-7-131 (c). Under OCGA § 17-7-131 (a) (2),

“[m]entally ill” means having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. However, the term “mental illness” shall not include a mental state manifested only by repeated unlawful or antisocial conduct.

4 Accordingly, mental illness less than legal insanity or incompetency at the time of the

crime is not a defense to the crime. State v. Abernathy, 289 Ga. 603, 608-609 (715

SE2d 48) (2011). When a defendant is found guilty but mentally ill at the time of a

felony, “the court shall sentence him or her in the same manner as a defendant found

guilty of the offense. . . .” OCGA § 17-7-131 (g) (1). But in that case, the defendant

“shall be committed to an appropriate penal facility and shall be evaluated then

treated, if indicated, within the limits of state funds appropriated therefor, in such

manner as is psychiatrically indicated for his or her mental illness. . . .” Id.

Under OCGA § 17-7-131, Perkins would have been entitled to a jury charge

on whether he was guilty but mentally ill only if he asserted the defense that he was

not guilty because he was legally insane or otherwise mentally incompetent at the

time of the charged offenses. Accordingly, as to whether trial counsel’s performance

was deficient, the issue is whether counsel had information which required him to

investigate and raise whether Perkins was sane at the time of the charged offenses.

In a non-capital case, [as opposed to a death penalty case,] a decision to forego or curtail the investigation of the accused’s mental health is not as likely to be unreasonable. Ordinarily, the lack of investigation into a previous mental hospitalization is reasonable when an expert has determined that the defendant is fit to stand trial or that he was sane at the time of the offense. In the absence of such determination, however, where a defense attorney has received information from a reliable source

5 that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance.

Martin v. Barrett, 279 Ga. 593, 594 (619 SE2d 656) (2005) (punctuation and citations

omitted). Here, there was no determination by any expert that Perkins was sane at the

time of the offenses (or that he was fit to stand trial), and the record shows that trial

counsel received reliable information during the course of the trial that Perkins had

a history of mental illness in that he had been diagnosed as suffering from bipolar

disorder. Despite this information, trial counsel made no effort to investigate

Perkins’s history of mental illness. Even assuming under these circumstances that

counsel’s failure to seek a psychological evaluation to determine if Perkins was sane

at the time of the charged offenses was deficient performance, and that the trial court

erred by finding to the contrary, Perkins failed to show prejudice by proving that, but

for counsel’s failure, there was a reasonable probability the result of the trial would

have been different. Strickland, 466 U. S. at 694. Because Perkins produced no expert

testimony at the motion for new trial showing that a psychological evaluation would

have aided an insanity defense, his ineffective assistance claim rests on speculation

and fails for lack of demonstrated prejudice. Taylor v. State, 298 Ga. App. 145, 148

(679 SE2d 371) (2009); Devega v. State, 286 Ga. 448, 450 (689 SE2d 293) (2010).

6 2. Perkins claims that the trial court erred by failing to sua sponte order a

mental health evaluation and instruct the jury that it was entitled to reach a verdict

that he was guilty but mentally ill.

As set forth above, under OCGA § 17-7-131, Perkins would have been entitled

to a jury charge on the issue of whether he was guilty but mentally ill only where the

defense was interposed that he was not guilty by reason of being insane or otherwise

mentally incompetent at the time of the charged offenses. Perkins did not raise this

defense at trial, and in division 1, supra, we addressed his claim that trial counsel was

ineffective for failing to seek a mental health evaluation to determine whether there

was a basis for him to assert an insanity defense. Where evidence of a defendant’s

incompetency comes to the trial court’s attention, the court is required to conduct a

sua sponte investigation into the defendant’s competency to stand trial (Jackson v.

State, 294 Ga. 431, 434 (754 SE2d 322) (2014)), but for a defendant competent to

stand trial, there is no requirement that the trial court sua sponte investigate or raise

the defense of insanity (or other mental incompetency) at the time of the charged

offense. Holsey v. State, 322 Ga. App. 425, 428 (746 SE2d 133) (2013). Contrary to

Perkins’s claim, Ake v. Oklahoma, 470 U. S. 68, 83 (105 SCt 1087, 84 LE2d 53)

(1985), did not require the trial court to sua sponte investigate or raise an insanity

7 defense on his behalf. In Ake, the indigent defendant: (1) requested that the trial court

arrange to have him examined by a psychiatrist to determine his sanity at the time of

the charged offense, or (2) in the alternative, petitioned the court for funds to hire his

own psychiatrist. Lindsey v. State, 254 Ga. 444, 447 (330 SE2d 563) (1985)

(explaining the holding in Ake). On those facts, Ake held that “when a defendant

demonstrates to the trial judge that his sanity at the time of the offense is to be a

significant factor at trial, the State must, at a minimum, assure the defendant access

to a competent psychiatrist who will conduct an appropriate examination and assist

in evaluation, preparation, and presentation of the defense.” Ake, 470 U. S. at 83.

Perkins made no request, motion, or other affirmative attempt to demonstrate to the

trial court that he had an insanity defense, and Ake does not establish a requirement

for the trial court to act sua sponte under these circumstances. Although a trial court

may exercise inherent authority to “[appoint] experts to testify as to the defendant’s

mental capacity at the time of the alleged crimes” (Presnell v. State, 241 Ga. 49, 57

(243 SE2d 496) (1978), rev’d in part on other grounds, 439 U. S. 14 (1978)), there

is no requirement that the court do so sua sponte. The trial court did not err by failing

to sua sponte order that Perkins submit to a mental health evaluation to determine his

8 sanity, or by failing to instruct the jury that it was entitled to reach a verdict of guilty

but mentally ill.

3. Perkins claims that the trial court erred by considering aggravating

circumstances in a pre-sentence report because the report was not made known to him

before it was submitted to the trial court for the sentencing hearing. See Geyer v.

State, 289 Ga. App. 492, 493-494 (657 SE2d 878) (2008). The State disputes

Perkins’s claim, and the record is unclear. But even assuming that Perkins was not

given the report before the sentencing hearing, in the absence of any objection at the

hearing to use of the report, this claim was waived. Eddleman v. State, 247 Ga. App.

753, 754 (545 SE2d 122) (2001).

Judgment affirmed. McFadden and Ray, JJ., concur.