Taylor v. State

884 S.E.2d 346, 315 Ga. 630

• Court: Supreme Court of Georgia
• Decided: February 21, 2023
• Docket: S22A1003
• Status: Published

Opinion

315 Ga. 630 FINAL COPY

S22A1003. TAYLOR v. THE STATE.

WARREN, Justice.

After a jury trial in December 2013, Jeremy Gene Taylor was

convicted of the malice murder of Earl Bolar and the aggravated

battery of Seaborn Roberts.1 Taylor raises five claims of error on

appeal: that (1) the trial court abused its discretion by excluding

evidence about Taylor’s mental health; (2) the trial court erred by

sentencing Taylor based on an inference that Taylor did not accept

responsibility or feel remorse for his crimes because he did not plead

1 The crimes occurred on August 3, 2011. On August 23, 2011, a Richmond County grand jury indicted Taylor on three counts: malice murder, felony murder, and aggravated battery. After a jury trial from December 16 to 18, 2013, Taylor was found guilty on all counts. On December 18, 2013, Taylor was sentenced to life in prison without the possibility of parole for malice murder and 20 years to be served consecutively for aggravated battery. The felony-murder count was vacated by operation of law. Taylor filed a timely motion for new trial on December 27, 2013, which he amended on November 24, 2020. On January 26, 2022, the trial court denied Taylor’s motion for new trial, as amended. Taylor timely filed a notice of appeal on February 7, 2022. The case was docketed in this Court to the August 2022 term and submitted for a decision on the briefs. guilty; (3) the trial court abused its discretion by denying Taylor’s

motion for a mistrial after a defense witness opined on the legal

definition of aggravated battery; (4) Taylor received ineffective

assistance of counsel because his lawyer did not investigate and

present an insanity defense; and (5) Taylor received ineffective

assistance of counsel because his lawyer failed to introduce

mitigation evidence based on Taylor’s mental health.

We conclude that the trial court did not plainly err by excluding

evidence about Taylor’s mental health because Taylor affirmatively

waived the argument he now raises on appeal about mental health

evidence being excluded at trial, and that the trial court did not

abuse its discretion by denying Taylor’s motion for a mistrial

because the witness’s testimony was based on personal knowledge

and because lay witnesses are allowed to testify about an “ultimate

issue” in a case. With respect to Taylor’s claims of ineffective

assistance of counsel, we conclude that trial counsel’s investigation

into Taylor’s mental health and his decision not to raise an insanity

defense were not constitutionally deficient; that aspects of counsel’s

2 mitigation strategy were not constitutionally deficient; and that

certain other aspects of trial counsel’s mitigation strategy did not

prejudice Taylor. Finally, we conclude that Taylor has not met his

burden to show that the trial court penalized him for exercising his

right to trial. We therefore affirm Taylor’s convictions and

sentences.

1. (a) The evidence presented at trial showed the following. On

August 3, 2011, Taylor was living at the Hale Foundation, a “sober

living community for men,” and was in his first 30 days at the

Foundation—a period of time when residents have most of their

days scheduled for them.

That morning, Roberts and Eric Fairfax—who had been living

at the Foundation longer than 30 days—were sitting behind a house

in the Foundation parking lot. Roberts and Fairfax noticed that

Taylor was walking around the lot instead of attending a required

meeting. Roberts, who knew Taylor before their time at the

Foundation, asked Taylor why he was not in a meeting. According

to Fairfax, Taylor’s response was something to the effect of he “didn’t

3 feel like being there, didn’t want to be there[,] and . . . didn’t need

it.” Taylor then approached Roberts and Fairfax. Although Roberts

and Fairfax provided conflicting testimony about whether Roberts

asked another question or said nothing else, they both stated that

once Taylor reached Roberts and Fairfax, Taylor punched Roberts

in the face once, knocking him unconscious. Fairfax testified that

Taylor then “backed away for a second.” Fairfax had “never seen

anybody get hit that hard [his] entire life”; “the first hit . . . was so

hard and so fast that [Fairfax] questioned whether it had actually

happened.” Taylor “hit [Roberts] four more times.”

Fairfax intervened after Taylor hit Roberts for a fifth time.

Fairfax asked Taylor to stop hitting Roberts and to not hit him.

Taylor responded, “[Fairfax], I’m not going to hit you,” and then,

according to Fairfax, “seemed calm.” Roberts and Fairfax testified

that neither had any issues with Taylor leading up to the attack.

Fairfax called the police and Deputy Chris Hill responded to

the scene. Roberts and Fairfax later testified that they did not speak

to the police that day, but Deputy Hill testified that he spoke with

4 Roberts and that once he arrived, someone—he “believe[d] it was

[Roberts]”—told him that Taylor “punched [Roberts] in the face for

no reason.” Deputy Hill, who saw that Roberts had a scratch on his

forehead that had been bleeding, did not “speak to any medical

personnel at the scene,” so he was “not aware of the full extent of

[Roberts’s] injuries.”

Deputy Hill then “turn[ed his] attention” to Taylor. While still

at the Foundation, Taylor admitted to Deputy Hill that he hit

Roberts. When Deputy Hill asked Taylor why, Taylor responded

that he did it “because he felt like it.” Taylor also told Deputy Hill

that he drank alcohol the night before but that he had not consumed

alcohol or drugs that day. Deputy Hill later testified that Taylor

seemed “in control of his faculties” and that he did not smell alcohol

on Taylor. When Deputy Hill transported Taylor to jail, Taylor did

not “give [Deputy Hill] any trouble” or “appear to be agitated . . . ,

angry or upset[.]”

Ponyetta Odums, an employee in the Richmond County

Sheriff’s department, filled out a medical intake form for Taylor

5 while booking him at the jail. Odums later testified that Taylor did

not appear to be angry or intoxicated, but that Taylor told her that

he had been drinking at some point recently.

Odums booked Taylor on a disorderly-conduct charge.2 Taylor

was placed in a holding cell with five other people, including Bolar,

a homeless man who had been charged with criminal trespassing.

Odums also booked Bolar, whom she described as appearing “very

jolly.” She further testified that Bolar was “just going to go asleep”

once he got in the holding cell and that “[h]e went inside and laid

down.”

After Taylor and Bolar were in the cell together for some time,

jail employee Maria Hurlburt let one of the prisoners out of the

holding cell to make a phone call and then escorted him back to the

cell. Around 15 to 20 minutes later, Hurlburt and Odums were

walking past that holding cell when they looked inside and saw

2 The State’s charging decision was made after Deputy Hill saw only a “small mark” on Roberts’s head. After the State learned of “the extent of [Roberts’s] facial fractures and surgery he would need,” it upgraded Taylor’s charge to aggravated battery. 6 Bolar on the floor. He was “fighting to catch his breath,” with blood

covering his nose and mouth. He could not speak and was “jerking

his head” with “blood just running out” and had “defecated on

himself.”

When Odums asked the inmates who attacked Bolar, Taylor

responded, “I did it.” When asked why, he responded, “because I felt

like it.” Bolar was taken to the hospital and placed on life support.

He died two weeks later.

Taylor was ultimately charged with malice murder and felony

murder for attacking and killing Bolar and aggravated battery for

attacking Roberts.

(b) Before trial, Taylor’s pre-trial counsel considered raising

an insanity defense on behalf of Taylor. To that end, pre-trial

counsel sought and obtained two court-ordered evaluations in which

a psychologist offered her opinion on Taylor’s competency to stand

trial and his criminal responsibility at the time of the alleged crimes.

The psychologist’s first evaluation (and resulting report) focused on

Taylor’s competency to stand trial because, as the report reflects,

7 Taylor initially “declined to have his mental state at the time of the

alleged offenses assessed.” But, at Taylor’s request, the psychologist

later completed a second evaluation and report addressing Taylor’s

criminal responsibility. As explained more below in Division 5, the

resulting reports recounted Taylor’s past struggles with substance

abuse and mental health, but ultimately concluded that Taylor was

competent to stand trial and was not insane when he allegedly

attacked Roberts and Bolar. The second report also contained

Taylor’s account of how he attacked Bolar after his cellmates made

“racist comments” and left Taylor with the impression that “they

were all going to jump” him. Taylor’s trial counsel decided against

asserting an insanity defense, and trial counsel did not seek to admit

the reports into evidence.

Even so, Taylor’s trial counsel mentioned Taylor’s mental

health several times outside the presence of the jury. For example,

the transcript shows that trial counsel remarked how “the

evaluations” stated that Taylor might have “delusional thinking . . .

induced by probably substance abuse” but it did not rise “to the level

8 of an insanity defense.” Later, when Taylor asked during trial why

his mental health was not being discussed before the jury, trial

counsel remarked that he had “not seen anything” indicating that

Taylor had “a defense based on mental health.” Likewise, the trial

court commented that a diagnosis such as bipolar disorder or

depression was “not equivalent or equal to” the defense of “not guilty

by reason of insanity and/or guilty but mentally ill.” The trial court

also expressed its understanding that Taylor had undergone

“forensic . . . or mental health evaluations . . . which did not support”

raising a mental health defense. To that end, the trial court noted

that it wanted to be “clear for the record” that Taylor’s mental health

had “been investigated by [his] attorney.” Taylor’s trial counsel

responded that “[t]he most that the evaluation tells us is that Mr.

Taylor was probably operating from a paranoid perspective and that

would have been induced by his substance abuse” when he allegedly

committed the crimes, to which the court responded that “voluntary

intoxication of whatever sort is not a defense.”

9 (c) Before trial, the State offered Taylor a plea bargain in

which Taylor would be sentenced to life with the possibility of parole

for Bolar’s murder and a concurrent sentence of an unknown time

for committing aggravated battery against Roberts. Taylor did not

accept that offer and elected to go to trial instead. At trial, the four

inmates who had been in the holding cell with Taylor and Bolar

testified about the attack on Bolar. They each testified that when

Taylor was placed in the cell, Bolar was there and already sleeping.

In one inmate’s words, Taylor walked up to Bolar sometime later

and “just started beating” him and then “kicking him in the face.”

Each of the four inmates testified that Bolar was sleeping when

Taylor attacked him. Three inmates testified that no one in the cell

talked to Taylor and that Taylor did not talk to any of them before

the attack. The fourth testified that he never spoke to Taylor and

that Taylor and Bolar never spoke to each other. All four testified

that Taylor attacked Bolar for no apparent reason. The attack was

captured by a surveillance camera, and a video recording of it was

played for the jury.

10 The medical examiner who performed Bolar’s autopsy, Dr.

Daniel Brown, determined that Bolar’s cause of death was homicide

from blunt-force trauma. Taylor did not present any witnesses. His

trial counsel asked for and obtained jury instructions on the lesser-

included offenses of voluntary and involuntary manslaughter on the

malice and felony-murder charges and battery on the aggravated

battery charge. Taylor was found guilty of all counts: malice

murder, felony murder, and aggravated battery.

(d) Taylor’s mother, father, and pastor spoke briefly at

sentencing. So did Bolar’s mother, sister, and daughter. Taylor also

spoke at sentencing, saying: “I just want to say I’m sorry. But I also

want to say I’m sorry for taking an innocent man’s life.” The trial

court said that it was “clear from the evidence” that the crimes

Taylor was convicted of resulted from Taylor’s history of substance

abuse, and that the court was “convinced that had there not been

substance abuse involved in this case,” the crimes Taylor was

convicted of never would have occurred. It continued: “Mr. Taylor,

you did not accept responsibility for your actions. The State prior to

11 trial in this case offered you an opportunity to accept responsibility,

and offered you a sentence of life with the possibility of parole.”

After Taylor briefly responded, the trial court said, “[y]ou declined

to accept that and you declined to accept or admit any responsibility

for this action.”

Trial counsel reminded the court that Taylor had undergone

two mental health evaluations and that Taylor experienced

“paranoid thinking.” Trial counsel asserted that Taylor “honestly

believed” that there was a “threat” in the cell with him and that

Taylor “had to defend himself” when he killed Bolar. Trial counsel

then asked that the court not “punish” Taylor “for exercising his

right to trial,” to which the court responded: “the sentence is not

intended to punish you for exercising your right to trial. It does

reflect the fact that you did not accept any responsibility or show

any remorse for your actions in causing the death of an individual.”

Taylor responded that he had “accepted responsibility.” He

said that he told his “attorney several times that [he] would accept

[a sentence for] manslaughter because that is what [he] felt like” he

12 committed; he “did not know that [his] hands would cause that kind

of damage.” He said he was “sorry for what [he had] done,” and that

he “accept[ed] responsibility.” The trial court said that it

“underst[oo]d,” but that the facts necessary to support manslaughter

“were not present in this case at all.” Taylor did not proffer a

mental-health expert at sentencing. The court then sentenced

Taylor to life in prison without parole for Bolar’s murder and 20

years consecutive for aggravated battery. The reason the court gave

for its sentence was that Taylor failed to “accept any responsibility

or show any remorse” for his actions.

2. Taylor contends that the trial court abused its discretion

by granting the State’s motion to exclude from evidence portions of

the medical intake form Taylor filled out at booking that pertained

to his mental health. On appeal, Taylor argues that portions of the

medical intake form were admissible as lay evidence of a “mental

health defense.” But Taylor affirmatively waived any “mental

health defense” at trial, so this enumeration fails.

13 (a) At trial, Taylor sought to introduce portions of the medical

intake form that he filled out while being booked in jail. The form

included 27 yes-or-no questions, and Taylor wanted to introduce his

answers to questions pertaining to his mental health history. In

particular, he had provided affirmative responses to question 11,

which asked whether he had “any Mental Health problems,” and

question 16, which asked whether he had “ever tried to hurt or kill”

himself.

The prosecutor made an oral motion in limine to prevent the

answers from being admitted, contending that all of Taylor’s

answers from the form should be excluded as inadmissible hearsay

and that, hearsay aside, Taylor’s answers suggesting that he “may

have had mental health problems” should be excluded as irrelevant

and prejudicial because Taylor did not file a notice of asserting a

mental health defense. The trial court explained that it “d[id]n’t

think” that the mental health questions “should come in to

evidence.” Taylor’s trial counsel responded that “[t]his is not a given

case where we’re raising a mental health defense of any kind,” but

14 contended the medical intake form should be admitted to help the

jury understand Taylor’s “state of mind at the time he was arrested

and placed” in the holding cell. The trial court then granted the

motion to exclude and ruled that it would not admit into evidence

Taylor’s answers to any of the questions on the intake form that

related to Taylor’s mental health.

(b) Taylor has not preserved this enumeration of error for

ordinary appellate review. That is because Taylor contends on

appeal that the trial court should have admitted the answers to the

mental health questions on his medical intake form on the theory

that they were lay evidence that he “heard” voices that were in

reality “coming from his head,” thus supporting a “mental health

defense” that would have enabled the jury to “choose a lesser

included charge on the verdict form.” But at trial, Taylor did not

advance that theory in seeking to admit those responses; to the

contrary, he sought their admission only to show his state of mind

when “he was arrested and placed into th[e] holding cell.”

15 Nonetheless, plain-error review applies when, on appeal, a

defendant argues that evidence was admissible for a purpose other

than the one for which he sought to admit the evidence at trial, as

Taylor does here. See Williams v. State, 302 Ga. 147, 150-151 (805

SE2d 873) (2017) (applying plain-error review when on appeal the

defendant argued that the court should have admitted a

toxicologist’s testimony about “drugs found in [the victim’s] blood” in

support of the defense theory that the drugs made the victim more

likely to die by “asphyxiation by choking,” when at trial the

defendant argued only that the drugs “would have made [the victim]

both ‘clumsy’ and ‘drowsy’ and ‘explosive, hyperactive’”).

The plain-error standard has four prongs.

First, there must be an error or defect—some sort of “[d]eviation from a legal rule”—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—

16 discretion which ought to be exercised only if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’”

Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016) (punctuation

omitted) (quoting State v. Kelly, 290 Ga. 29, 33 (718 SE2d 232)

(2011)).

Here, Taylor does not satisfy even the first prong of plain-error

review because he affirmatively waived using the medical intake

form for the purpose of supporting a “mental health defense.” To

that end, the record shows that while attempting to admit the

medical intake form into evidence, Taylor’s trial counsel asserted

that Taylor was not “raising a mental health defense of any kind,”

affirmatively waiving use of the medical intake form for that

purpose. See Dukes v. State, 311 Ga. 561, 569 (858 SE2d 510) (2021)

(holding that the defendant affirmatively waived the argument that

a witness should have been permitted to further testify when, in

response to the State’s objection that the defendant had not laid a

proper foundation, the defendant said, “[T]hat’s all I’m going to ask

him” and that the witness was “not qualified” to continue testifying);

17 Davis v. State, 311 Ga. 225, 230-231 (857 SE2d 207) (2021) (holding

that the defendant affirmatively waived the argument that a

witness was not “unavailable” under the hearsay rules when the

defendant told the judge that the State’s argument for why the

witness was “unavailable” was “right” and asked that all of the

witness’s testimony come in, not only the parts that helped the

State). Because Taylor has not shown that the trial court plainly

erred, his claim fails.

3. Taylor contends that the trial court erred by using his

decision to forgo a plea deal as a consideration during sentencing.

Taylor does not rely on a “presumption of vindictiveness” in

advancing his claim, and instead points to what he deems the trial

court’s “improper consideration of the rejection of a plea deal.”

Because Taylor has failed to meet his burden in showing that the

trial court sentenced him with an impermissible motive such that it

penalized Taylor for exercising his constitutional right to a trial, we

affirm.

18 (a) As noted above, the State offered Taylor a plea deal before

trial. It offered Taylor a sentence of life with the possibility of parole

for Bolar’s murder (as opposed to the only other sentence available

here for a conviction of malice murder, life without parole) and a

concurrent sentence of an unknown time (as opposed to up to 20

years) for committing aggravated battery against Roberts, if Taylor

agreed to plead guilty to Bolar’s murder and to the aggravated

battery of Roberts. Taylor did not accept that offer and instead

elected to go to trial. He was convicted on both counts. The trial

court then imposed the maximum available sentence: life without

parole with 20 years in prison consecutive.

At sentencing, Taylor’s pastor, his mother, and his father

testified on his behalf. Taylor then offered remarks and had the

following exchange with the trial court:

DEFENDANT: I just want to say I’m sorry. But I also want to say I’m sorry for taking an innocent man’s life. COURT: It is clear from the evidence in this case that this was a result of substance abuse of a long nature. Mr. Taylor, you did not accept responsibility for your actions. The State prior to trial in this case offered you an

19 opportunity to accept responsibility, and offered you a sentence of life with the possibility of parole. DEFENDANT: Yes, ma’am. COURT: You declined to accept that and you declined to accept or admit any responsibility for this action. And you come from a good and loving family.

Taylor’s counsel, after referencing Taylor’s mental health and

substance abuse, asked that the trial court not “punish Mr. Taylor

for exercising his right to trial” and stated that Taylor “felt in his

heart that he was not a murderer.” The court responded that “the

sentence is not intended to punish you for exercising your right to

trial. It does reflect the fact that you did not accept any

responsibility or show any remorse for your actions in causing the

death of an individual.” Taylor then asked to speak and stated:

Judge . . . I have accepted responsibility for it. I told my attorney several times that I would accept manslaughter because that is what I felt like I have done. I did take manslaughter. Okay. But I had no intent to — I did not understand the severity, I did not understand Mr. Roberts, and I didn’t know that he was as bad as he was. I did not know that my hands would cause that kind of damage. I had no idea. And I’m sorry for what I’ve done. I do accept responsibility. That’s all.

20 The court responded that the necessary “facts [for manslaughter]

were not present in this case at all.” It then sentenced Taylor.

(b) In reviewing Taylor’s claim, we “presume the trial court

knew and applied” the law when sentencing Taylor “‘absent some

indication in the record suggesting otherwise.’” Holmes v. State, 311

Ga. 698, 706 (859 SE2d 475) (2021) (quoting State v. Abbott, 309 Ga.

715, 719 (848 SE2d 105) (2020)). We also keep in mind that,

although not without limits, sentencing judges generally are

afforded wide discretion. See State v. Riggs, 301 Ga. 63, 68 (799

SE2d 770) (2017) (“[T]rial courts generally have the discretion to

fashion sentences that fit the crimes for which the defendant is

convicted, so long as the sentences fall within the statutory

ranges.”). One limitation on that discretion is the constitutional

prohibition of sentences that punish defendants for exercising their

constitutional rights, such as the right to trial. See Bordenkircher

v. Hayes, 434 U.S. 357, 363 (98 SCt 663, 54 LE2d 604) (1978) (“To

punish a person because he has done what the law plainly allows

him to do is a due process violation of the most basic sort, and for an

21 agent of the State to pursue a course of action whose objective is to

penalize a person’s reliance on his legal rights is ‘patently

unconstitutional.’”) (citations omitted); Corbitt v. New Jersey, 439

U.S. 212, 221-225 (99 SCt 492, 58 LE2d 466) (1978) (applying

Bordenkircher to a statutory sentencing framework). See also North

Carolina v. Pearce, 395 U.S. 711, 725 (89 SCt 2072, 23 LE2d 656)

(1969) (“Due process of law, then, requires that vindictiveness

against a defendant for having successfully attacked his first

conviction must play no part in the sentence he receives after a new

trial.”), overruled in part by Alabama v. Smith, 490 U.S. 794 (109

SCt 2201, 104 LE2d 865) (1989). But see Bordenkircher, 434 U.S. at

363 (“[I]n the ‘give-and-take’ of plea bargaining, there is no such

element of punishment or retaliation so long as the accused is free

to accept or reject the prosecution’s offer.”).

In contending that the trial court had an impermissible motive

in sentencing, Taylor does not rely on the presumption of

vindictiveness established in Pearce, 395 U.S. at 725. He does not

cite any cases showing what burden he bears to prevail on his claim,

22 so we presume that he must “show actual vindictiveness,” see Texas

v. McCullough, 475 U.S. 134, 138 (106 SCt 976, 89 LE2d 104) (1986),

especially given that Taylor does not contend that any other

standard applies. See also, e.g., Alabama, 490 U.S. at 799-800

(defendant bears the burden when alleging actual vindictiveness in

resentencing). Cf. United States v. Dvorin, 817 F3d 438, 455 (5th

Cir. 2016) (defendant bears the burden by a preponderance of the

evidence when alleging actual prosecutorial vindictiveness).

In Taylor’s view, he has shown that the trial court punished

him for choosing to exercise his right to trial because the proximity

of the court’s statement that Taylor “declined to accept” the plea

with its finding that Taylor “declined to accept or admit any

responsibility” necessarily implies that the court considered Taylor

rejecting the plea deal in assessing whether he accepted

responsibility. He contends that inference is particularly strong

because the record—which shows Taylor stating three times during

sentencing that he was sorry and also stating that he “accepted

23 responsibility”—contradicts the trial court’s finding that Taylor “did

not accept responsibility or show any remorse.”

We are not so sure. Although the trial court’s reference to

Taylor declining the State’s plea offer—particularly in such close

proximity to its finding that Taylor “declined to accept or admit any

responsibility”—could be viewed as implying that the trial court

equated Taylor rejecting a plea (and then exercising his right to

trial) with a lack of acceptance of responsibility and remorse, we

cannot say that is definitively so. Indeed, at most Taylor has shown

that the record is ambiguous with respect to the court’s motive in

sentencing Taylor. We reach that conclusion in large part because

after making the potentially problematic statements referenced

above, the trial court expressly stated that “the sentence [wa]s not

intended to punish [Taylor] for exercising [his] right to trial,” and

that the sentence was based on the court’s finding that Taylor “did

not accept any responsibility or show any remorse.” And the record

could be viewed as supporting that conclusion: the trial court was

authorized to evaluate Taylor’s credibility and the genuineness of

24 his remorse, see Isaacs v. State, 259 Ga. 717, 723 (386 SE2d 316)

(1989) (“‘[S]incere contrition’” “is a permissible area of inquiry

during sentencing.” (emphasis omitted)), and it was authorized to

discredit Taylor’s statement that he accepted responsibility for the

crimes—especially given that he immediately followed one of his

apologies by saying “I would accept manslaughter” (not the murder

charge for which he was convicted) “because that is what I felt like

I have done”—a comment that the trial court could have viewed as

undermining the genuineness of any or all of Taylor’s apologetic

statements.

To be sure, if the trial court exercised its discretion to give

Taylor the maximum available sentence because it did not, in fact,

believe his multiple apologies were genuine, or because his professed

acceptance of responsibility was not credible, the better course

under these particular circumstances would have been for the trial

court to make those findings on the record and make no suggestion—

implicit or explicit, cf. Winfrey v. State, 304 Ga. 94, 98 (816 SE2d

613) (2018)—that the exercise of Taylor’s constitutional right to trial

25 motivated the trial court’s sentence. But viewing the record as a

whole, and in light of the presumption that the trial court knew and

applied the law, see Holmes, 311 Ga. at 706, we cannot say that

Taylor has carried his burden of showing that the trial court

penalized him for exercising his right to trial. We therefore affirm

his sentence.

4. Taylor contends that the trial court abused its discretion

in denying Taylor’s motion for a mistrial after one of the State’s lay

witnesses provided improper testimony by testifying that “the law

dictate[d]” that aggravated battery was the appropriate charge for

Taylor attacking Roberts. For the reasons that follow, this claim

fails.

(a) Taylor was originally charged with disorderly conduct for

attacking Roberts. However, once the State was informed that

Roberts’s injuries were more severe than initially known, the State

filed additional charges against Taylor. While examining an

investigator at trial, the prosecutor asked why Taylor’s charge was

upgraded from disorderly conduct to aggravated battery. The

26 investigator responded: “[A]fter meeting with the victim and

viewing his injuries and speaking with his doctors on the extent of

his facial fractures and surgery he would need, the law dictates that

that was the appropriate charge.” Taylor moved for a mistrial,

arguing that the answer “invade[d] the province of the jury” because

it is the jury’s role to determine the “appropriate charge.” The trial

court denied Taylor’s motion. Later, in denying Taylor’s motion for

new trial on the same issue, the trial court ruled that the

investigator’s testimony was “most fairly seen as an attempt to

explain his own conduct in upgrading the charge . . . rather than an

opinion on the ultimate issue of whether [Taylor] committed the

offense.” In the alternative, the trial court ruled that the

investigator’s “remark was not barred even if it touched on the

ultimate issue in the case” under OCGA § 24-7-704 (a).

(b) “Under Georgia’s Evidence Code, a lay witness ‘may not

testify to a matter unless evidence is introduced sufficient to support

a finding that the witness has personal knowledge of such matter.

Evidence to prove personal knowledge may, but need not, consist of

27 the witness’s own testimony.’” Draughn v. State, 311 Ga. 378, 385

(858 SE2d 8) (2021) (quoting OCGA § 24-6-602) (holding that

eyewitness testimony identifying the defendants in a surveillance

video was based on personal knowledge because the witness

identified the defendants based on his “recollection of the stabbing”).

In addition, except for certain expert testimony, “testimony in the

form of an opinion or inference otherwise admissible shall not be

objectionable because it embraces an ultimate issue to be decided by

the trier of fact.” See OCGA § 24-7-704 (“Rule 704”). “[T]his Court

has repeatedly held . . . that the current Evidence Code . . . abolished

the prohibition on lay opinion testimony concerning the ultimate

issue in a case.” Fisher v. State, 309 Ga. 814, 821 (848 SE2d 434)

(2020) (cleaned up).

To the extent the trial court concluded that the investigator’s

testimony was proper lay testimony because it was based on

personal knowledge about why Taylor’s charges were upgraded, see

Draughn, 311 Ga. at 384-385, we see no abuse of discretion in the

trial court denying Taylor’s motion for a mistrial on that basis. And

28 even assuming, without deciding, that the investigator’s testimony

touched upon the ultimate issue in this case, see Pyatt v. State, 298

Ga. 742, 754 (784 SE2d 759) (2016) (assuming without deciding that

a law enforcement officer’s testimony touched on the ultimate issue

when he testified among other things that “[i]n my opinion and in

what I consider the law[,] that is aggravated assault” (emphasis

omitted)), we likewise see no abuse of discretion in the trial court’s

denial of the motion on that basis. Thornton v. State, 307 Ga. 121,

127-128 (834 SE2d 814) (2019) (concluding that a lead detective’s

testimony that only one suspect could have committed part of the

crime was lay testimony and thus not barred by Rule 704). See also

Fisher, 309 Ga. at 820-821 (noting that Rule 704 would not have

barred a lead detective’s testimony about whether someone was an

accomplice to the defendant’s crime even if it touched upon the case’s

ultimate issue because that rule does not bar lay opinion testimony).

5. Taylor contends that his trial counsel provided ineffective

assistance under the Sixth Amendment to the United States

Constitution because trial counsel failed to investigate and make

29 arguments related to Taylor’s mental health at both the guilt and

sentencing phases of his trial.

(a) Some additional background is necessary to review Taylor’s

claim. To begin, because Taylor was indigent and unable to pay for

expenses related to his defense, Taylor’s pre-trial counsel (who did

not participate at trial) filed with the trial court a petition for a

court-ordered psychiatric evaluation to be performed on Taylor.

Before trial, the trial court ordered a psychiatric evaluation to

determine whether Taylor was (1) “mentally competent at the time”

of the alleged crimes and (2) “competent to counsel with his attorney

and [ ] competent to stand trial.” The trial court also ordered that

the psychiatrist’s findings be memorialized in a report. Pursuant to

the court order, Dr. Elizabeth Donegan, a licensed psychologist3

employed by the Georgia Department of Behavioral Health &

Developmental Disabilities, performed two evaluations and

produced two reports. A March 2012 report addressed whether

3 On appeal, Taylor does not enumerate any error related to Dr. Donegan

being a psychologist and not a psychiatrist. 30 Taylor was competent to stand trial, and a February 2013 report

addressed Taylor’s mental state at the time of the alleged crimes

against Roberts and Bolar. Dr. Donegan explained in the second

report that a second evaluation was needed to evaluate Taylor’s

mental state when he attacked Roberts and Bolar because, during

the first evaluation, “Taylor declined to have his mental state at the

time of the alleged offenses assessed.” Ultimately, neither the

March 2012 report nor the February 2013 report was introduced into

evidence at trial, but those reports are at the center of Taylor’s

claims of ineffective assistance of counsel and were part of the record

at the motion-for-new-trial stage.

March 2012 Report. In the first report, Dr. Donegan

determined that Taylor knew the charges he faced, knew he could

go to prison if convicted, and “demonstrated awareness of the

judicial process.” According to Dr. Donegan, Taylor showed the

ability to exercise behavior that would be “appropriate for the

courtroom,” and he “was able to provide relevant information in

response to questions.” Dr. Donegan concluded that “Taylor

31 appeared to understand the nature and object of the proceedings, to

comprehend his situation in reference to the proceedings, and to

have the capacity to render his attorney assistance in providing a

proper defense.”

February 2013 Report. As explained more below, Dr. Donegan

concluded in her second report that when he attacked Roberts and

Bolar, Taylor did not appear to be under a “delusional compulsion

that overmastered his will to resist committing the offenses” or

“unable (as a result of mental illness or impairment) to distinguish

basic concepts of right and wrong.” Before reaching this conclusion,

Dr. Donegan conducted two “[c]linical forensic interview[s]” with

Taylor, one in January 2012 and the other in January 2013, and

examined court documents from Taylor’s arrest, medical records

from while Taylor was in jail, and medical records from three of

Taylor’s earlier hospitalizations.

Dr. Donegan noted that Taylor had a history of substance

abuse and mental-health-related issues. Taylor’s substance abuse

mainly involved the use of alcohol, marijuana, and cocaine. His

32 mental health history included, among other things, two

hospitalizations for harming himself and diagnoses of Polysubstance

Dependence, Intermittent Explosive Disorder, Antisocial

Personality Disorder, Substance-Induced Mood Disorder,

Substance-Induced Psychosis, and Substance-Induced Psychotic

Disorder.

The report recounted Taylor’s accounts of the beatings of

Roberts and Bolar. Taylor said that he was doing cocaine and

drinking with Roberts the morning of the crimes, and that he had

experienced “some paranoia while in the Hale House,” including

thinking that “everyone” there was “out to hurt” him, and that he

was “kinda high, but . . . too stressed out and too spooked to be

enjoying anything.” He also “thought [the other inmates] were all

going to jump” him. Taylor said that Bolar called him a “cracker”

after the other inmates in the cell had each already “said something

racist” to Taylor. Taylor told Bolar not to call him a “cracker” again.

When Bolar did, Taylor “hit him and kicked him and hit him and

kicked him.” The report then noted that, “in clarification,” Taylor

33 said he was not sure whether the inmates were actually talking to

him or “it was voices [he] was hearing,” but that he “denied

experiencing hallucinations in his history.” Taylor said that “he did

not think that” he would have attacked Roberts and Bolar “if he had

not been using [drugs] that day.”

Dr. Donegan concluded:

While Mr. Taylor appears to have some mental health treatment history; largely, it appears, in connection with substance abuse; and a tendency for interpreting people’s actions and statements in a paranoid or derogatory manner was reported during that period surrounding the alleged offenses, Mr. Taylor did not express overtly delusional beliefs directly related to the alleged offenses and other available evidence for review surrounding the times of the alleged offenses did not note Mr. Taylor to have made seemingly delusional statements in regard to the alleged offenses and his behaviors or suggest he experienced delusional thinking during those times. Behaviors surrounding the alleged offenses do not appear to have resulted from a delusional compulsion that overmastered his will to resist committing the offenses. Available information from the period surrounding the alleged offenses also does not suggest Mr. Taylor experienced mental health symptoms during the time of the alleged offenses to a degree of severity that his mental capacity was so impaired that he was unable (as a result of mental illness or impairment) to distinguish basic concepts of right and wrong during those times. Mr. Taylor is though noted to have been

34 abusing alcohol and cocaine in close proximity to the alleged offenses, the use of which, it appears reasonable to presume, would likely have made him more prone to impulsive behavior and poor judgment and, based on his history, irritability and a paranoid perspective.

Taylor’s Motion for New Trial. At the hearing on Taylor’s

motion for new trial, trial counsel testified about his trial strategy.

He explained that, although he did not personally request that

mental health evaluations be conducted for Taylor, a lawyer who

represented Taylor before trial did so and that Dr. Donegan

eventually conducted them. Trial counsel was “fairly confident” that

he reviewed those evaluations around the time of Taylor’s trial.

After Taylor’s motion-for-new-trial counsel attempted to impeach

Taylor’s trial counsel by asking whether trial counsel told another

lawyer in 2016 that he did not read Dr. Donegan’s reports,4 trial

counsel testified “[t]hat would not be consistent with [his] memory”

and clarified that he read Dr. Donegan’s evaluations and did not

4 Taylor presented testimony from a lawyer who worked on Taylor’s case

after he was convicted. She testified that she ran into Taylor’s trial counsel in court one day in 2016 and had “a very brief conversation” with him in which she asked whether he had been “able to read [Dr. Donegan’s] evaluations”; he responded “he had not.” 35 raise an insanity defense because he understood them to “say that

[Taylor] was competent,” although he “recall[ed] some language to

the effect that there was some delusional component to his thinking

processes.” Trial counsel explained that his strategy was requesting

“lesser included offenses” for Taylor instead of pursuing an insanity

defense.

On cross-examination, the prosecutor elicited testimony from

Taylor’s trial counsel that counsel must have considered an insanity

defense for Taylor because he mentioned on the record before trial

that he was not raising a mental health defense and that Taylor’s

diagnosis of substance-induced psychosis would have created

problems because voluntary intoxication generally is not a defense.

With respect to his representation at the sentencing phase, trial

counsel testified that his decision not to call “doctors or experts

during the mitigation” phase of sentencing was not a “strategic

choice,” and that he “probably should have” done that “in hindsight.”

Taylor also called a forensic psychologist, Dr. Paganelli, to

testify. Dr. Paganelli evaluated Taylor in 2020, around seven years

36 after Taylor was convicted for attacking Roberts and Bolar. She

concluded that Taylor was having “paranoid delusions” when he

attacked Roberts and Bolar “that were not directly caused by any

substance or any alcohol.” According to Dr. Paganelli, Taylor’s

mental health issues and events like a car accident, losing his job,

being physically attacked in a previous job, and “split[ting] up” with

his wife—and not exclusively drug use—contributed to his mental

state when he attacked Roberts and Bolar. She concluded that

Taylor was “very likely . . . experiencing psychotic and mood disorder

symptoms alongside his alcohol and drug use in the community” but

that those “were masked by his substance abuse, and/or completely

attributed to drugs of abuse, as many substances of abuse

(specifically cocaine) can cause paranoia and other symptoms that

mimic psychosis.” Dr. Paganelli diagnosed Taylor with

“Schizophrenia, Schizoaffective Disorder, and/or Bipolar Disorder.”

However, Dr. Paganelli concluded that “Taylor does not meet

criteria for a not guilty by reason of insanity plea.”

37 The trial court denied Taylor’s claims of ineffective assistance

of counsel, finding that despite trial counsel’s inability to remember

with certainty whether he reviewed Dr. Donegan’s reports, “the

record shows counsel indeed undertook such an evaluation and

affirmatively concluded the evidence did not support” raising an

insanity defense. For example, the trial court pointed out that “trial

counsel’s ability to recall the most favorable details from Dr.

[Donegan’s] findings indicate[s] prior consideration of these

findings.” The trial court also noted that “[d]espite mental health

evaluations conducted both before and after trial, there has been no

evidence produced to support a finding that [Taylor] lacked the

mental capacity to distinguish right from wrong or that he suffered

from a delusional compulsion.” It also highlighted various problems

Taylor would face if he had tried to introduce Dr. Donegan’s report

to support an insanity defense. First, the report would have

highlighted the role of substance abuse in Taylor’s conduct, whereas

the jury otherwise heard minimal evidence about his substance

abuse, thus “inject[ing] the negating dynamic of [Taylor’s] chronic

38 history of controlled substance addiction.” And the report could

have harmed Taylor’s defense because it might have led the jury to

believe that Taylor’s attack on Bolar was racially motivated. The

trial court held that trial counsel’s decision not to raise an insanity

defense at trial was not constitutionally deficient performance under

Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674)

(1984). It also concluded that Taylor was not prejudiced by any

alleged deficiency related to trial counsel’s performance at

sentencing, reasoning that “[g]iven the Court’s repeated appeal to

the impact of voluntary intoxication, it is unlikely any additional

evidence of Defendant’s mental health history would have had an

impact on the Court’s decision to sentence” and that trial counsel’s

further reference to either the pre-trial or post-trial expert reports

would have been of no benefit to Taylor because both “make clear

the causative dynamics of substance abuse with respect to

Defendant’s aberrant behaviors.”

(b) To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

39 deficient and that the deficient performance resulted in prejudice to

the defendant. Strickland, 466 U.S. at 687; Wesley v. State, 286 Ga.

355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a

defendant must demonstrate that his attorney “performed at trial in

an objectively unreasonable way considering all the circumstances

and in the light of prevailing professional norms.” Romer v. State,

293 Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466

U.S. at 687-688. To satisfy the prejudice prong, a defendant must

establish a reasonable probability that, in the absence of counsel’s

deficient performance, the result of the trial would have been

different. See id. at 694. “If an appellant fails to meet his or her

burden of proving either prong of the Strickland test, the reviewing

court does not have to examine the other prong.” Lawrence v. State,

286 Ga. 533, 533-534 (690 SE2d 801) (2010).

Claims of ineffective assistance of counsel involve mixed

questions of law and fact, and “a trial court’s factual findings made

in the course of deciding an ineffective assistance of counsel claim

will be affirmed by the reviewing court unless clearly erroneous.”

40 Green v. State, 302 Ga. 816, 818 (809 SE2d 738) (2018) (citation and

punctuation omitted). Conclusions of law based on those facts are

reviewed de novo. See Bright v. State, 292 Ga. 273, 274 (736 SE2d

380) (2013).

(c) Taylor contends that his trial counsel was ineffective for

failing to investigate and raise a defense of insanity on his behalf.

As part of that claim, Taylor contends that trial counsel should have

read Dr. Donegan’s reports, obtained Taylor’s hospital and jail

records, and obtained and introduced an expert report on Taylor’s

mental health from an “independent psychologist.” Taylor further

contends that his trial counsel should have raised and supported a

defense of insanity by, for example, having Taylor’s mother testify

about Taylor’s mental health and by introducing the medical intake

form Taylor filled out when he was booked into jail.

“We have explained before that, generally speaking in non-

capital cases, a trial counsel’s ‘decision to forego or curtail’ further

investigation of an accused’s mental health, ‘even when there has

been a previous mental hospitalization[,] is reasonable when an

41 expert has determined that the defendant is fit to stand trial or that

he was sane at the time of the offense.’” Sullivan v. State, 308 Ga.

508, 513 (842 SE2d 5) (2020) (quoting Whitus v. State, 287 Ga. 801,

803-804 (700 SE2d 377) (2010)). In Sullivan, for example, this Court

held that trial counsel’s “failure to procure and present to the jury

expert testimony about [the defendant’s] mental health and its effect

on his criminal responsibility” was not constitutionally deficient

when trial counsel “obtained mental evaluations” finding the

defendant competent to stand trial and competent at the time of the

offenses and trial counsel “consulted medical records.” Id. at 512 -

514. See also Whitus, 287 Ga. at 803-804 (defendant failed to show

that her trial counsel “unreasonably relied on [an expert’s

psychiatric] evaluation” and thus failed to show that trial counsel

was constitutionally deficient for failing to obtain an additional

evaluation when her trial counsel “testified that he believed that the

evaluation was fair and balanced and that he had no reason to

disagree and request additional testing” (citation and punctuation

omitted)).

42 Here, Taylor has failed to show that trial counsel was deficient

for failing to further investigate the possibility of an insanity

defense. To begin, the trial court concluded at the motion-for-new-

trial stage that Taylor’s trial counsel did read and consider Dr.

Donegan’s reports. Even to the extent there was conflicting evidence

in the record about that point, the trial court was authorized to

credit trial counsel’s testimony (as well as evidence such as counsel’s

references to Dr. Donegan’s reports during trial) over the testimony

of post-conviction counsel. See Stepp-McCommons v. State, 309 Ga.

400, 410 (845 SE2d 643) (2020) (the trial court “‘resolve[s] any

conflicts in the testimony’” at motion-for-new-trial hearing (citation

omitted)). Thus, “this is not a case where trial counsel made no

effort to investigate the potential for a defense based on mental

health issues or relied exclusively upon his own lay evaluation of the

mental health of his client.” See Sullivan, 308 Ga. at 514 (cleaned

up). Moreover, Taylor has not shown that it was objectively

unreasonable for his trial counsel to rely on Dr. Donegan’s two

reports—which she drafted after examining court documents from

43 Taylor’s arrest, medical records from while Taylor was in jail, and

medical records from three of Taylor’s earlier hospitalizations5—and

in light of those reports, cease additional investigation into Taylor’s

mental health and decide against raising additional evidence that

could have supported an insanity defense. See Whitus, 287 Ga. at

803-805; Sullivan, 308 Ga. at 513-514.6 Thus, under the

circumstances presented here, Taylor’s trial counsel was not

constitutionally deficient in declining to obtain or introduce evidence

(such as the medical intake form) in support of an insanity defense.

This enumeration therefore fails.

5 Notably, Taylor has not shown how having trial counsel obtain records

like the ones Dr. Donegan relied on would have equipped trial counsel to present different, let alone more favorable, arguments about Taylor’s mental health than Dr. Donegan.

6 To the extent Taylor also contends that his trial counsel was constitutionally deficient because he “did not request from the trial court that an independent psychologist examine Mr. Taylor prior to trial” (emphasis supplied), his unsupported contention also fails. Indeed, Taylor has not alleged, let alone shown, that Dr. Donegan suffered from any conflict of interest or other deficiency such that she was not “independent,” and we cannot say that trial counsel was constitutionally deficient on this basis. See Whitus, 287 Ga. at 804.

44 (d) Taylor also raises a claim of ineffective assistance of counsel

related to his trial counsel’s performance in the sentencing phase of

trial. Citing only two Court of Appeals cases in which that court

concluded that the trial counsel involved in those cases did not

provide ineffective assistance,7 Taylor contends that his “trial

counsel erred in failing to seek out mitigation evidence” at

sentencing. He argues that his trial counsel should have done three

things: sought out and introduced expert “mental health or

mitigation” evidence; brought to the court’s attention evidence of

Taylor’s “mental illness already in the record”; and brought to the

trial court’s attention Taylor’s statement contained in Dr. Donegan’s

report that he felt “like crap” for killing Bolar. Analyzing Taylor’s

claim under the proper Strickland standard, we conclude that his

claims fail.

7 See Owens v. State, 324 Ga. App. 198, 206 (749 SE2d 783) (2013) (analyzing a claim of ineffective assistance under Strickland’s prejudice prong); Tyner v. State, 313 Ga. App. 557, 565-567 (722 SE2d 177) (2012) (trial counsel was not deficient under Strickland for failing to present mitigation testimony about the defendant’s mental health when “trial counsel was never made aware of [the defendant’s] condition”). 45 As an initial matter, we have already established that Taylor’s

pre-trial counsel secured two mental health evaluations of Taylor

and that the psychologist who examined him provided two expert

reports. And we have concluded that counsel did not perform

deficiently at the trial stage when, in reliance on Dr. Donegan’s

reports, he declined to further investigate Taylor’s mental health.

See supra, Div. 5 (c). Even to the extent trial counsel testified at the

motion-for-new-trial hearing that his decision not to call experts at

the sentencing stage was not strategic, the standard for evaluating

trial counsel’s conduct is an objective one under Strickland;

“hindsight has no place in an assessment of the performance of trial

counsel, and a lawyer second-guessing his own performance with the

benefit of hindsight has no significance for an ineffective assistance

of counsel claim,” and we cannot say that trial counsel was

constitutionally deficient under the circumstances presented in this

case by declining to have an additional expert evaluate and then

testify about Taylor’s mental health at his sentencing. Keener v.

State, 301 Ga. 848, 850 (804 SE2d 383) (2017) (cleaned up)

46 (deemphasizing testimony from defendant’s attorneys who

disagreed about whether a witness was cross-examined deficiently).

To the extent that Taylor’s statement that his trial counsel “did

not seek out Dr. Donegan . . . to address [his] punishment” can be

read as an argument that his trial counsel was deficient for failing

to call Dr. Donegan to testify at his sentencing, that claim also fails.

Any findings Taylor may have deemed helpful from Dr. Donegan’s

report were undercut by Dr. Donegan’s ultimate conclusion that it

was “reasonable to presume” that substance abuse contributed to

Taylor attacking Bolar and Roberts and that Taylor was not “unable

(as a result of mental illness or impairment) to distinguish basic

concepts of right and wrong during those times.” Thus, trial counsel

was not objectively unreasonable for declining to have Dr. Donegan

testify during Taylor’s sentencing. See Sullivan, 308 Ga. at 512

(whether to call an expert witness to testify about a defendant’s

“mental health and its effect on his criminal responsibility” is a

matter of trial strategy, and “to establish that a strategic decision

constitutes deficient performance, a defendant must show that no

47 competent attorney, under similar circumstances, would have made

it” (cleaned up)); Martin v. State, 306 Ga. 747, 751-752 (833 SE2d

122) (2019) (holding that trial counsel did not perform deficiently by

not procuring an expert to evaluate and testify about the defendant’s

mental health because it might have led to discovery and admission

of testimony trial counsel preferred to have excluded).

Next, we cannot say that trial counsel was constitutionally

deficient because he did not seek and present other mitigation

evidence at sentencing. To that end, Taylor has not offered any

additional mitigation evidence that trial counsel reasonably could

have obtained, making only a passing reference to evidence “already

in the record” and a “colloquy at trial” without offering any specific

example or citing any specific portion of the record or transcript. “It

is not the function of this Court to cull the record for a party to find

alleged errors or to form arguments on the appellant’s behalf.”

Neuman v. State, 311 Ga. 83, 96 (856 SE2d 289) (2021) (citing

Henderson v. State, 304 Ga. 733, 739 (822 SE2d 228) (2018)). Taylor

48 has failed to carry his burden of showing that counsel performed

deficiently in failing to provide additional mitigating evidence.

Finally, with respect to Taylor’s last claim, we assume without

deciding that trial counsel’s performance at sentencing was deficient

when he failed to emphasize to the court the statement that Taylor

felt “like crap” after attacking Bolar. We accordingly must ask

whether there is a “reasonable probability” that Taylor would have

received a lesser sentence had his trial counsel invoked that

statement at sentencing. Strickland, 466 U.S. at 694.

We cannot say that there is a “reasonable probability” that

Taylor would have received a lighter sentence had trial counsel

invoked Taylor’s statement. Id. As mentioned above, the evidence

that Taylor killed Bolar was strong; the attack was recorded on a

surveillance video that was played for the jury, and Taylor did not

dispute that he attacked Bolar. Moreover, the trial court observed

first-hand the aspects of Taylor’s apology in which he said he was

“sorry for taking an innocent man’s life” and that he “accepted

responsibility for” causing Bolar’s death. We cannot say that “there

49 is a reasonable probability that” Taylor’s sentence “would have been

different” had his trial counsel also referenced an additional self-

serving comment from Dr. Donegan’s expert report—and not made

in person, where the trial court could have better assessed

credibility—about how Taylor said he felt, especially given that the

trial court was already weighing competing evidence of Taylor’s

remorse or lack thereof, and that any additional apologetic comment

the court credited could be viewed as cumulative. See Lewis v. State,

312 Ga. 537, 544 (863 SE2d 65) (2021) (holding that failure to

present cumulative evidence was not prejudicial); Wesley, 286 Ga. at

358 (same). See also Hulett v. State, 296 Ga. 49, 70 (766 SE2d 1)

(2014) (holding that the defendant was not prejudiced by defense

counsel’s decision not to present mitigation evidence that was both

“cumulative” of evidence presented and less “detailed and

compelling”).

Judgment affirmed. All the Justices concur.

50 Decided February 21, 2023.

Murder. Richmond Superior Court. Before Judge Jolly.

Lucy D. Roth, for appellant.

Jared T. Williams, District Attorney, Kelly J. Weathers,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant

Attorney General, for appellee.