Taylor v. State

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Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: February 21, 2023
S22A1003. TAYLOR v. THE STATE.
WARREN, Justice.
After a jury trial in December 2013, Jeremy Gene Taylor was
convicted of the malice murder of Eric 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
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.
responsibility or feel remorse for his crimes because he did not plead
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
2
defense were not constitutionally deficient; that aspects of counsel’s
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
3
to Fairfax, Taylor’s response was something to the effect of he “didn’t
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
4
to the police that day, but Deputy Hill testified that he spoke with
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[.]”
5
Ponyetta Odums, an employee in the Richmond County
Sheriff’s department, filled out a medical intake form for Taylor
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 Earl
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
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
cell. Around 15 to 20 minutes later, Hurlburt and Odums were
walking past that holding cell when they looked inside and saw
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.
7
The psychologist’s first evaluation (and resulting report) focused on
Taylor’s competency to stand trial because, as the report reflects,
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
8
evaluations” stated that Taylor might have “delusional thinking . . .
induced by probably substance abuse” but it did not rise “to the level
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 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
9
committed the crimes, to which the court responded that “voluntary
intoxication of whatever sort is not a defense.”
(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
10
attack was captured by a surveillance camera, and a video recording
of it was played for the jury.
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
11
convicted of never would have occurred. It continued: “Mr. Taylor,
you did not accept responsibility for your actions. The State prior to
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.”
12
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
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 “accepted[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
13
health defense.” But Taylor affirmatively waived any “mental
health defense” at trial, so this enumeration fails.
(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
14
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
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
15
contrary, he sought their admission only to show his state of mind
when “he was arrested and placed into th[e] holding cell.”
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
16
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—
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) (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 of 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 (2021) (858 SE2d 510)
(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, “That’s all I’m going to ask
17
him” and that the witness was “not qualified” to continue testifying);
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:
THE 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.
THE 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
19
actions. The State prior to trial in this case offered you
an opportunity to accept responsibility, and offered you a
sentence of life with the possibility of parole.
THE DEFENDANT: Yes, ma’am.
THE 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 (849 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
21
him to do is a due process violation of the most basic sort, and for an
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 and punctuation 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 726. He does not
22
cite any cases showing what burden he bears to prevail on his claim,
so we presume that he must “show actual vindictiveness,” see Texas
v. McCullough, 475 U.S. 134, 138 (106 SCt 976, 89 LEd 2d 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 F.3d 438, 454 (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” and “did not 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.”), 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
motivated the trial court’s sentence. But viewing the record as a
25
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
investigator responded: “[A]fter meeting with the victim and
26
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
the witness’s own testimony.’” Draughn v. State, 311 Ga. 378, 385
27
(858 SE2d 8) (2021) (quoting OCGA § 24-6-602 (“Rule 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”). “This 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 mistrial on that basis. And
even assuming, without deciding, that the investigator’s testimony
28
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 “In my opinion and in
what I consider the law[,] that is aggravated assault”), 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
arguments related to Taylor’s mental health at both the guilt and
29
sentencing phases of his trial. 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 psychologist 3 employed by the
Georgia Department of Behavioral Health & Developmental
Disabilities, performed two evaluations and produced two reports.
A March 2012 report addressed whether Taylor was competent to
stand trial, and a February 2013 report addressed Taylor’s mental
3 On appeal, Taylor does not enumerate any error related to Dr. Donegan
being a psychologist and not a psychiatrist.
30
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 were 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
appeared to understand the nature and object of the proceedings, to
31
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
mental health history included, among other things, two
32
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
said he was not sure whether the inmates were actually talking to
33
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
abusing alcohol and cocaine in close proximity to the
alleged offenses, the use of which, it appears reasonable
34
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 reports4, trial
counsel testified “[t]hat would not be consistent with [his] memory”
and clarified that he read Dr. Donegan’s evaluations and did not
raise an insanity defense because he understood them to “say that
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
[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
after Taylor was convicted for attacking Roberts and Bolar. She
36
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 the
criteria for a not guilty by reason of insanity plea.”
The trial court denied Taylor’s claims of ineffective assistance
of counsel, finding that despite trial counsel’s inability to remember
37
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
history of controlled substance addiction.” And the report could
have harmed Taylor’s defense because it might have led the jury to
38
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
deficient and that the deficient performance resulted in prejudice to
the defendant. Strickland, 466 U.S. at 687; Wesley v. State, 286 Ga.
39355, 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.”
Green v. State, 302 Ga. 816, 818 (809 SE2d 738) (2018) (citation and
punctuation omitted). Conclusions of law based on those facts are
40
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
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.
41508, 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 the
evaluation was fair and balanced and that he had no reason to
disagree and request additional testing”).
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-
42
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
Taylor’s arrest, medical records from while Taylor was in jail, and
43
medical records from three of Taylor’s earlier hospitalizations 5—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.
5Notably, 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
added), 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 of 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 v. State,
286 Ga. 355, 358 (689 SE2d 280) (2010) (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