Mitchell v

State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988). Applying ‘‘guilty but mentally ill’’ provision retrospectively. — Since the bank robberies were committed before July 1, 1982, and a verdict of guilty was authorized by the evidence, the application of the ‘‘guilty but mentally ill’’ provision was not an unconstitutional application of an ex post facto law. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983). Since the defendant did not seek a jury determination of the defendant’s alleged mental retardation, as defined by O.C.G.A. § 17-7-131(a)(3), at the defendant’s criminal trial for murder, that issue was procedurally defaulted pursuant to O.C.G.A. § 9-14-48(d); however, the court reviewed the issue under the miscarriage of justice standard and determined that Ring v. Arizona, 536 U.S. 584 (2002) did not have a retroactive effect in the defendant’s collateral review proceeding instituted after the appeals from the original trial were completed. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003). Procedural requirements not retroactive. — Since the defendant pled ‘‘guilty but mentally ill’’ to the offense of malice murder in 1983, the plea was tendered and accepted under the original provisions of O.C.G.A. § 17-7-131, which contained no specific procedural requirements for the entry of such a plea, and the trial court was not bound by the provisions of (b)(2) as those provisions were not enacted until 1985. Logan v. State, 256 Ga. 664, 352 S.E.2d 567 (1987). Evaluation report. — While the failure to file the statutorily required written evaluation report of the appellant’s present mental condition does not rise to the level of procedural due process, nevertheless the statute does expressly require that the report be made and tendered to 17-7-131 the trial court and counsel, and the proper remedy is to direct compliance with the statute. Williams v. State, 185 Ga. App. 559, 365 S.E.2d 141 (1988). Effect of presenting ‘‘guilty but mentally ill’’ defense on insanity defense. — When the defendant’s counsel acquiesced in presenting the ‘‘guilty but mentally ill’’ verdict option to the jury, the defendant was estopped from contending on appeal that the option infringed on the defendant’s defense of insanity. Milam v. State, 255 Ga. 560, 341 S.E.2d 216 (1986). Verdict of not guilty by reason of insanity reflected two crucial factual determinations. First, such verdict indicated a determination beyond a reasonable doubt by the finder of fact that the defendant committed the crime in question. Secondly, this verdict indicated a finding that it has been demonstrated by a preponderance of the evidence that the defendant, at the time the criminal act was committed, met the criteria for civil commitment. Under former O.C.G.A. § 24-4-21 (see O.C.G.A. § 24-14-21), this mental state was presumed to continue so that the burden of proof in a release proceeding under O.C.G.A. § 17-7-131 rests on the insanity acquittee. Whitfield v. State, 158 Ga. App. 660, 281 S.E.2d 643 (1981). ‘‘Guilty but mentally ill’’ plea knowingly entered. — In a malice murder case, a review of the record of the ‘‘guilty but mentally ill’’ plea, as well as of the collateral proceedings, revealed that the plea was knowingly and voluntarily entered by the defendant with a full understanding of the defendant’s waiver of rights and the consequences of the entry of the plea. Logan v. State, 256 Ga. 664, 352 S.E.2d 567 (1987). Establishing career offender with plea of ‘‘guilty but mentally ill.’’ — Felony conviction for a crime of violence based on a plea of ‘‘guilty but mentally ill’’ under O.C.G.A. § 17-7-131 qualified as a predicate offense to establish career offender status under the federal sentencing guidelines. United States v. Bankston, 121 F.3d 1411 (11th Cir. 1997), cert. denied, 522 U.S. 1067, 118 S. Ct. 735, 139 L. Ed. 2d 672 (1998). 605 General Consideration (Cont’d) Plea of not guilty by reason of insanity is a plea of confession and avoidance. It admits the facts pled in the indictment, but avoids conviction because of the condition of insanity of the defendant at the time of the offense. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993). Plea of not guilty by reason of insanity is a plea of confession and avoidance, which admits the facts pled in the indictment, but avoids conviction because of the condition of insanity of the defendant at the time of the offense. Kelley v. State, 235 Ga. App. 177, 509 S.E.2d 110 (1998). Jurisdiction afforded committing courts pursuant to O.C.G.A. § 17-7-131 is not limited to the rendition of the initial commitment order and final release decision, but also encompasses the authority to render all other decisions necessary for the treatment of the insanity acquittee as well as those decisions necessary to ensure both the acquittee’s safety and the safety of the community. O’Neal v. State, 185 Ga. App. 838, 365 S.E.2d 894 (1988). Pursuit of treatment outside treating facility. — Committing court has the authority to allow an insanity acquittee to pursue treatment, educational, or other goals outside the confines of the treating facility. O’Neal v. State, 185 Ga. App. 838, 365 S.E.2d 894 (1988). Availability of state funding need not be mentioned. — Provisions of O.C.G.A. § 17-7-131(g)(1) merely specify the respective obligations of the trial court and the penal facility following a conviction based on a verdict of guilty but mentally ill, and the trial court is not obligated to instruct the jury that any required treatment would be dependent upon the availability of state funding. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016). Court retains jurisdiction after plea of insanity is accepted. — If the defendant enters a plea of not guilty by reason of insanity, which is accepted, and the court commits the defendant to a hospital for treatment, the committing 17-7-131 court retains jurisdiction of the acquitted-committed defendant. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993). Rejection of expert testimony as to sanity. — Jury is free to reject expert testimony as to sanity and may find an accused sane even without positive testimony as to sanity. Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981). Trial judge, as the finder of fact, is not bound by the opinions of either lay or expert witnesses as to sanity and may rely upon the basic presumptions permitted by law. Haugebrooks v. State, 196 Ga. App. 5, 395 S.E.2d 348 (1990). Jurors are not bound by the opinions of expert witnesses regarding a defendant’s sanity; instead, jurors may rely on the presumption of sanity in O.C.G.A. § 16-2-3 unless the proof of insanity is overwhelming. Vanderpool v. State, 244 Ga. App. 804, 536 S.E.2d 821 (2000), cert denied, 532 U.S. 996, 121 S. Ct. 1658, 149 L. Ed. 2d 640 (2001). Criminal accountability not relieved by proof of multiple personalities. — In every circumstance, including the existence of multiple personalities, the law is justified in governing accountability when at the time of the criminal act the person had mental capacity to distinguish between right and wrong in relation to such act and was not acting because of a delusional compulsion as to such act which overmastered the person’s will to resist committing the crime, which delusion would, if true, have justified the act. If these elements are found to be present in a case, the law will not inquire whether the individual possesses other personalities, fugues, or even moods in which the person would not have performed the act or perhaps did not even know the act was being performed. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983). Verdict of guilty but mentally ill proper when multiple personalities showing. — Since the trial judge accepted that the defendant suffered from a multiple personality disorder, but ruled that the personality who robbed the banks did so with rational, purposeful criminal 606 intent and with knowledge that the robbery was wrong, there was no error in the judge’s finding that the defendant was guilty but mentally ill. Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 (1983). Investigation not required prior to sentencing mentally retarded defendant. — Trial court did not err in sentencing the defendant, after a finding of guilty but mentally retarded, as contrary to the defendant’s assertion, neither the current nor former version of O.C.G.A. § 17-7-131 required a trial court to have an investigation conducted prior to sentencing a mentally retarded defendant. Moreover, contrary to the defendant’s argument, the statutory and regulatory framework demonstrated that the required evaluation was an administrative rather than a judicial function that occurred postsentencing. Chauncey v. State, 283 Ga. App. 217, 641 S.E.2d 229 (2007). Verdicts not inconsistent. — Verdicts of not guilty by reason of insanity pursuant to O.C.G.A. § 17-7-131(a)(1) of malice murder and guilty but mentally ill of other related offenses, including felony murder, were not mutually exclusive, and any claim that the verdicts were inconsistent was not relevant because the inconsistent verdict rule had been previously abolished. Shepherd v. State, 280 Ga. 245, 626 S.E.2d 96 (2006), overruled on other grounds by McElrath v. State, 2020 Ga. LEXIS 127 (Ga. 2020). Separate trial not authorized. — Defendant charged with capital murder was properly denied a separate trial on the question of defendant’s mental retardation because the jury in a capital trial determines ‘‘at the time of the trial on guilt or innocence’’ whether the defendant is mentally retarded. Livingston v. State, 264 Ga. 402, 444 S.E.2d 748 (1994). Defendant in a capital trial is not entitled to a separate trial on the issue of mental retardation; O.C.G.A. § 17-7131(c)(3) requires the jury to determine mental retardation during the guilt/innocence phase. Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998). Sentencing instructions. — Since the defendant acknowledged the defendant could not prove the defendant’s tendered 17-7-131 insanity defense, and the defendant requested and received an instruction on the guilty but mentally ill verdict, the defendant was not entitled to an instruction on the sentencing options of that verdict, as that would have no bearing on the defendant’s guilt or innocence. Cranford v. State, 186 Ga. App. 862, 369 S.E.2d 50 (1988). Maximum punishment for mentally retarded. — Prospective juror’s opinion of whether a mentally retarded defendant should receive a harsher punishment than a person of normal intelligence is irrelevant since a defendant found by the jury to be mentally retarded cannot be executed and automatically receives a life sentence. Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997), cert. denied, 523 U.S. 1127, 118 S. Ct. 1815, 140 L. Ed. 2d 953 (1998). Amendment of guilty verdict to guilty but mentally ill not permitted. — Because the jury was instructed on possible verdicts of guilty and guilty but mentally ill and returned a verdict of guilty, amendment of the verdict from guilty to guilty but mentally ill would constitute an impermissible substantive change. Hollis v. State, 215 Ga. App. 35, 450 S.E.2d 247 (1994). Verdict of guilty but mentally ill supported by evidence. — When a social worker who examined the defendant testified that, although the defendant suffered from mental illness, the defendant knew the difference between right and wrong at the time of the crime, any rational trier of fact could have found from the evidence presented at trial that the defendant was guilty of the crime charged beyond a reasonable doubt, albeit mentally ill at the time of the crime. Jackson v. State, 166 Ga. App. 477, 304 S.E.2d 560 (1983). See also Awtrey v. State, 175 Ga. App. 148, 332 S.E.2d 896 (1985). Defendant was properly found guilty, but mentally ill, pursuant to O.C.G.A. § 17-7-131(c)(2), since expert testimony allowed the jury to conclude that the defendant knew the difference between right and wrong, planned the killings, intended for the defendant’s victims to die, knew that the defendant was ending their lives, appreciated the finality of the defendant’s 607 General Consideration (Cont’d) own actions, knew the defendant had done a terrible thing, was remorseful, and knew some people would view the defendant’s actions as illegal. Boswell v. State, 275 Ga. 689, 572 S.E.2d 565 (2002). Verdict of guilty but mentally ill was not demanded since there was evidence that the defendant’s mental illness was characterized by periods of normalcy, and that the defendant’s criminal acts on the day in question were not motivated by the delusions from which the defendant suffered. Lebbage v. State, 244 Ga. App. 596, 536 S.E.2d 282 (2000). ‘‘Guilty but mentally ill’’ plea properly accepted. — Since psychological evaluations were ordered by the court and defense counsel and the findings from both, which were consistent, were read into the record for the court’s consideration at the plea hearing, the requirements of O.C.G.A. § 17-7-131 (b)(2) were satisfied. Cullers v. State, 247 Ga. App. 155, 543 S.E.2d 763 (2000). Evidence did not support finding of insanity. — See Stephens v. State, 258 Ga. 320, 368 S.E.2d 754 (1988); Tarver v. State, 186 Ga. App. 905, 368 S.E.2d 828 (1988). ‘‘Insanity’’ and ‘‘mentally ill’’ verdicts not inseparable. — Verdicts of ‘‘not guilty by reason of insanity at the time of the crime’’ and ‘‘guilty but mentally ill at the time of the crime’’ are not inseparable; when the jury is instructed as to ‘‘guilty but mentally ill,’’ the jury need not also be instructed as to ‘‘not guilty by reason of insanity’’ when there is no evidence to support a charge on insanity. State v. Ball, 251 Ga. 840, 310 S.E.2d 516 (1984). Repeated charges and examples. — When proper charge concerning delusional compulsion had been given twice, there was no harmful error in judge providing jury with example of delusional compulsion. Camp v. State, 250 Ga. 228, 297 S.E.2d 26 (1982). When insanity presumption ends. — Any presumption of insanity raised by a finding that a person is a ‘‘mentally ill person requiring involuntary treatment’’ pursuant to O.C.G.A. § 37-3-1(12) ends 17-7-131 when the person’s involuntary commitment or hospitalization ends. Nelson v. State, 254 Ga. 611, 331 S.E.2d 554 (1985). Dismissal of defendant’s petition to correct a void judgment was proper when the procedural requirements of O.C.G.A. § 17-7-131(b)(2) were fulfilled when the defendant’s plea of guilty but mentally ill was taken and a factual basis for the plea was established. Barber v. State, 240 Ga. App. 156, 522 S.E.2d 528 (1999). Court, not institution, controls release. — Ultimate power to order the release from a mental institution of an insanity acquittee is one which rests, not in the institution, but in the trial court. Loftin v. State, 180 Ga. App. 613, 349 S.E.2d 777 (1986). Exhaustion of remedies not required before seeking habeas relief. — Because an involuntary detainee is specifically granted the right to seek habeas relief ‘‘at any time’’ by O.C.G.A. § 37-3-148, exhaustion of remedies is not required before a person involuntarily committed to a mental health facility following an acquittal by reason of insanity may seek habeas relief. Hogan v. Nagel, 273 Ga. 577, 543 S.E.2d 705 (2001); Hogan v. Nagel, 276 Ga. 197, 576 S.E.2d 873 (2003). Release from not guilty by reason of insanity verdict. — Trial court erred by not releasing the defendant from the not guilty by reason of insanity verdict because the defendant rebutted the presumption of insanity and the need for continued involuntary outpatient commitment; the treating psychiatrist testified that the defendant had good insight into the defendant’s condition, was coping well, was compliant, independently cared for oneself, and could be responsible for complying with treatment without the aid of an involuntary order. Coogler v. State, 324 Ga. App. 796, 751 S.E.2d 584 (2013). Court authorized to deny mental patient’s application for release. — Although the hospital physician and nurses testified that in their opinion a mental patient, involuntarily committed after being found not guilty of murdering the patient’s brother by reason of insanity, did not presently meet the criteria for civil 608 commitment and should have been released, based upon the evidence presented, including relapses suffered in the past after the patient ceased to take the patient’s medication, during one of which the patient killed the patient’s brother, the court was authorized to deny the application for release. Cox v. State, 171 Ga. App. 550, 320 S.E.2d 611 (1984). It was within the court’s discretion to reject conclusions reached by a patient’s professional witnesses and the patient’s mere promise that the patient would continue to take the patient’s medication upon conditional release. Butler v. State, 225 Ga. App. 288, 483 S.E.2d 385 (1997). Denial of release from involuntary confinement held proper. — Trial judge did not err in denying the release of a mental patient found not guilty of murder by reason of insanity from involuntary confinement despite the mental health professionals’ support for the patient’s release since the professional’s recommendations were based on the professional’s conclusions that the patient was no longer a danger to self or others because the patient’s mental condition was controlled by medication, which the patient would continue to take if the patient were released; the patient was under medication at the time the patient committed the murder, but quit taking the medication because the patient decided that the patient no longer needed the medication; the patient stated the patient believed the medication was beneficial, but the patient did not believe the patient needed to take the medication to function in society; the patient also expressed other irrational beliefs about another’s ability to throw ‘‘hates’’ at the patient; having acted upon numerous earlier requests concerning the patient’s custody, the trial judge was very familiar with the defendant’s mental condition and case history; and the judge’s order denying release was well documented. Crawford v. State, 202 Ga. App. 653, 415 S.E.2d 300 (1992). Trial court did not err in denying mental health patient’s motion for release when the record evinced that the patient remained highly delusional and capable of acting on those delusions to the injury of oneself or others. Gross v. State, 210 Ga. App. 125, 435 S.E.2d 496 (1993). 17-7-131 Rational trier of fact could have found that the appellant failed to prove by a preponderance of the evidence that the appellant was no longer insane and should be released from civil commitment when experts testified that the appellant became violently ‘‘psychotic’’ when the appellant engaged in substance abuse and that, although the appellant might not exhibit violently ‘‘psychotic’’ behavior so long as the appellant underwent the regimen of ‘‘forced abstinence’’ in a hospital setting, there was nothing to show that, once released from that setting and regimen, the appellant would not again engage in substance abuse and commit yet another violent ‘‘psychotic’’ act. Nagel v. State, 264 Ga. 150, 442 S.E.2d 446 (1994). Trial court did not err in denying the defendant’s petition for release from inpatient involuntary treatment under O.C.G.A. § 17-7-131(f ) because the defendant continued to meet the statutory inpatient involuntary treatment criteria under O.C.G.A. § 37-3-1(9.1), and the defendant failed to rebut the presumption of continuing insanity and that inpatient involuntary treatment was still required; the defendant’s experts testified that the defendant had physical altercations with patients and had relapsed and experienced an auditory hallucination after the trial court denied the defendant’s prior request for release, which led to an increase in medications. Newman v. State, 314 Ga. App. 99, 722 S.E.2d 911 (2012). Trial court was authorized to find that the defendant failed to prove that the defendant should be conditionally released to outpatient treatment in a group home based on the defendant’s long history of substance abuse and mental illness, lack of personal support, high level of intelligence and education, the defendant’s family’s adamant opposition, and the expert’s opinion that the defendant may not take the illness seriously and may not appreciate the gravity of the offenses. Gibson v. State, 335 Ga. App. 569, 782 S.E.2d 472 (2016). Detainee should have treatment plan for release. — Trial court did not exceed the court’s authority by granting a writ of habeas corpus, pursuant to O.C.G.A. § 9-14-19, to an involuntary de- 609 General Consideration (Cont’d) tainee who had been committed to a state hospital upon a finding of not guilty by reason of insanity in the deaths of the detainee’s grandparents and ordering that the state hospital officials prepare a plan for supervision and outpatient services upon the detainee’s release; the detainee was entitled to seek relief by that route, pursuant to O.C.G.A. § 37-3-148(a), or by seeking a release petition pursuant to O.C.G.A. § 17-7-131(f ). Hogan v. Nagel, 276 Ga. 197, 576 S.E.2d 873 (2003). Extension of involuntary outpatient treatment. — When an insanity acquittee has successfully completed a conditional release program order under O.C.G.A. § 17-7-131(e), the trial court is required to discharge the acquittee from the order requiring involuntary inpatient treatment, but is authorized to require that the acquittee participate in involuntary outpatient treatment. Sikes v. State, 268 Ga. 19, 485 S.E.2d 206 (1997). ‘‘Traumatic brain injury’’ exclusion in O.C.G.A. § 37-3-1 did not preclude the defendant’s involuntary treatment since the defendant was adjudicated mentally ill as defined in O.C.G.A. § 17-7-131. Sikes v. State, 221 Ga. App. 595, 472 S.E.2d 101 (1996). Defendant failed to prove sanity. — Defendant failed to prove that the defendant was not insane when the evidence indicated, inter alia, that the defendant had multiple fixed delusions, including believing to be a secret service agent and owning the hospital where the defendant was committed. Gross v. State, 262 Ga. App. 328, 585 S.E.2d 671 (2003). Defendant failed to carry the defendant’s burden of showing by a preponderance of the evidence that the defendant was sane after the defendant was found not guilty by reason of insanity on two stalking charges and was ordered into a civil commitment to a mental health facility; the verdict of not guilty by reason of insanity established both that the defendant committed the criminal offense and that the defendant did so becaue of a mental illness, and once the defendant was ruled insane, a presumption existed under former O.C.G.A. § 24-4-21 (see 17-7-131 O.C.G.A. § 24-14-21) that the insanity existed thereafter, and the defendant put on very little evidence to the contrary. Bonney v. State, 295 Ga. App. 706, 673 S.E.2d 102 (2009). Court did not need to inquire sua sponte into defendant’s competency. — Despite the defendant’s contentions that the trial court erred in not ensuring the competency required to control the defense, nothing before the appellate court indicated that the defendant was incompetent to stand trial, nor was there any evidence that should have indicated to the trial court that a sua sponte inquiry into competency was required. Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007). Trial court did not err by failing to sua sponte order that the defendant submit to a mental health evaluation to determine the defendant’s sanity, or by failing to instruct the jury that the jury was entitled to reach a verdict of guilty but mentally ill as the defendant made no request, motion, or other affirmative attempt to demonstrate to the trial court that the defendant had an insanity defense. Perkins v. State, 328 Ga. App. 508, 759 S.E.2d 626 (2014). No error in finding lack of mental retardation. — Habeas court did not err in finding that an inmate failed to prove mental retardation, in light of the conflicting evidence, including expert and lay testimony and non-testimonial evidence. Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56, cert. denied, 552 U.S. 1070, 128 S. Ct. 728, 169 L. Ed. 2d 569 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Determinations of mental competency. — In light of Georgia’s statutory bar under O.C.G.A. § 17-7-131(j) against executing mentally retarded individuals and the U.S. Supreme Court’s holding that executing mentally retarded individuals was unconstitutional, a federal habeas court concluded that an evidentiary hearing under 28 U.S.C. § 2254(e) was necessary to determine whether it was unreasonable for a prisoner’s attorneys to fail to investigate or raise the issue of mental retardation at the prisoner’s capital murder trial and whether the prisoner was, in fact, mentally retarded because: (1) in determining that counsels’ decision 610 not to raise or investigate the issue of mental retardation was not unreasonable, the state habeas court relied entirely on the opinions and testimony of two experts, neither of whom specifically addressed the statutory factors relevant to mental retardation under O.C.G.A. § 17-7-131(a)(3); and (2) the basis for the state habeas court’s determination that the prisoner was not mentally retarded was unclear. Ledford v. Head, No. 1:02-CV-1515-JEC, 2006 U.S. Dist. LEXIS 76612 (N.D. Ga. Oct. 13, 2006). Denial of the death-row inmate’s petition for writ of habeas corpus was affirmed because the district court’s finding that the inmate was not intellectually disabled was supported by the record since the inmate failed to demonstrate significant or substantial deficits in adaptive behavior in two adaptive skill areas as the inmate’s work problems resulted from the inmate’s substance abuse, rather than a limitation in an ‘‘adaptive skill area’’. Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432, 197 L. Ed. 2d 650 (U.S. 2017). Procedure for opening statements and closing arguments. — Trial of a habeas corpus petitioner’s claim of mental retardation should be regarded as a completion of the guilt/innocence phase of the petitioner’s original trial and, therefore, the state was entitled under Ga. Unif. Super. Ct. R. 10.2 to make an opening statement before the petitioner. Under O.C.G.A. § 17-8-71, the state was entitled to make an initial closing argument, the petitioner could then make the petitioner’s closing argument, and the state was entitled to make a final closing argument. Stripling v. State, 289 Ga. 370, 711 S.E.2d 665 (2011). Ineffective assistance of counsel for failing to plead guilty but mentally retarded not found. — With regard to a defendant’s convictions for kidnapping, aggravated sodomy, and aggravated sexual battery, the defendant was not rendered ineffective assistance of counsel as a result of trial counsel’s decision not to file a plea of guilty but mentally retarded and, instead, attack the credibility of the victim as trial counsel’s decision as to which 17-7-131 theory of defense to pursue was a matter of trial strategy and tactics that was not unreasonable and thus did not constitute ineffective assistance. Hampton v. State, 294 Ga. App. 857, 670 S.E.2d 502 (2008). Counsel’s failure to raise issue deficient but not prejudicial. — Defendant’s trial counsel performed deficiently in not seeking expert assistance in evaluating the defendant’s mental condition at the time of the shooting and at the time of trial because the defendant was hospitalized in 1996 after stabbing the same man that the defendant murdered; and, in 1996, the defendant reported hearing a voice telling the defendant to kill for which the defendant received antipsychotic medication; however, counsel’s deficient performance was not prejudicial as the defendant did not show that the jury would have returned a verdict of not guilty by reason of insanity because the defendant did not receive any diagnosis of or treatment for mental illness for more than a decade before the current crimes. Scott v. State, 301 Ga. 573, 802 S.E.2d 211 (2017). Cited in Davis v. State, 216 Ga. 110, 114 S.E.2d 877 (1960); Chandler v. State, 219 Ga. 105, 131 S.E.2d 762 (1963); Massey v. State, 222 Ga. 143, 149 S.E.2d 118 (1966); Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967); Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972); Pierce v. State, 231 Ga. 731, 204 S.E.2d 159 (1974); Saylor v. Terminal Transp. Co., 132 Ga. App. 760, 209 S.E.2d 133 (1974); Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185 (1975); Nunnally v. State, 235 Ga. 693, 221 S.E.2d 547 (1975); Wessner v. State, 236 Ga. 162, 223 S.E.2d 141 (1976); Graham v. State, 236 Ga. 378, 223 S.E.2d 803 (1976); Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976); Myers v. State, 143 Ga. App. 195, 237 S.E.2d 662 (1977); White v. State, 143 Ga. App. 315, 238 S.E.2d 247 (1977); Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (1978); Dubose v. State, 148 Ga. App. 9, 251 S.E.2d 15 (1978); Pennewell v. State, 148 Ga. App. 611, 251 S.E.2d 832 (1979); Bell v. State, 244 Ga. 211, 259 S.E.2d 465 (1979); Cantwell v. State, 153 Ga. App. 717, 266 S.E.2d 354 (1980); Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980); Mullins v. Belcher, 159 Ga. 611 General Consideration (Cont’d) App. 520, 284 S.E.2d 35 (1981); Clayton v. State, 160 Ga. App. 908, 288 S.E.2d 621 (1982); Gates v. State, 167 Ga. App. 353, 306 S.E.2d 411 (1983); Murray v. State, 253 Ga. 90, 317 S.E.2d 193 (1984); Pope v. State, 172 Ga. App. 396, 323 S.E.2d 268 (1984); Heaton v. State, 175 Ga. App. 735, 334 S.E.2d 334 (1985); Roberts v. Grigsby, 177 Ga. App. 377, 339 S.E.2d 633 (1985); Edison v. State, 256 Ga. 67, 344 S.E.2d 231 (1986); Caldwell v. State, 256 Ga. 10, 354 S.E.2d 124 (1987); Holloway v. State, 257 Ga. 620, 361 S.E.2d 794 (1987); Waldrop v. Evans, 681 F. Supp. 840 (M.D. Ga. 1988); Jacobs v. Taylor, 190 Ga. App. 520, 379 S.E.2d 563 (1989); Jones v. State, 191 Ga. App. 561, 382 S.E.2d 612 (1989); Ledbetter v. Cannon, 192 Ga. App. 392, 384 S.E.2d 875 (1989); Watkins v. State, 259 Ga. 648, 386 S.E.2d 132 (1989); Zant v. Beck, 259 Ga. 756, 386 S.E.2d 349 (1989); Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991); Lawrence v. State, 201 Ga. App. 7, 410 S.E.2d 136 (1991); Snyder v. State, 201 Ga. App. 66, 410 S.E.2d 173 (1991); Stephens v. State, 201 Ga. App. 744, 412 S.E.2d 571 (1991); Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993); Mathis v. Zant, 851 F. Supp. 1572 (N.D. Ga. 1994); Palmer v. State, 271 Ga. 234, 517 S.E.2d 502 (1999); Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000); Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000); Brown v. State, 246 Ga. App. 60, 539 S.E.2d 545 (2000); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000); Trammel v. Bradberry, 256 Ga. App. 412, 568 S.E.2d 715 (2002); Hall v. Brannan, 284 Ga. 716, 670 S.E.2d 87 (2008); Hall v. Lance, 286 Ga. 365, 687 S.E.2d 809 (2010); Brower v. State, 334 Ga. App. 262, 779 S.E.2d 32 (2015); McElrath v. State, 308 Ga. 104, 839 S.E.2d 573 (2020). Constitutionality Procedures established under this section were constitutional. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980). O.C.G.A. § 17-7-131 is not unconstitutionally vague and does not deny due process; the statute is sufficiently worded to inform a jury as to the meaning of a verdict of ‘‘mentally ill.’’ Worthy v. 17-7-131 State, 253 Ga. 661, 324 S.E.2d 431 (1985); Wilson v. State, 257 Ga. 444, 359 S.E.2d 891 (1987). While the definition of ‘‘mentally ill’’ in O.C.G.A. § 17-7-131 is not a model of specificity, the definition is sufficient to inform the jury of the meaning of a verdict of guilty but mentally ill and is not so vague as to violate due process. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985). Definition of ‘‘mentally ill’’ is not unconstitutionally vague. Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985); Salter v. State, 257 Ga. 88, 356 S.E.2d 196 (1987). Section does not constitute cruel and unusual punishment. — Simply because O.C.G.A. § 17-7-131 provides that a defendant convicted as guilty but mentally ill will be treated with funds to be appropriated, and there may exist a possibility that funds may run out or not be appropriated, there is no violation of constitutional guarantees against cruel and unusual punishment. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985). Section is not unconstitutional application of ex post facto law. — Verdict of guilty but mentally ill under O.C.G.A. § 17-7-131 was not an unconstitutional application of an ex post facto law merely because the crime occurred before the enactment of that section. Nelson v. State, 254 Ga. 611, 331 S.E.2d 554 (1985). This section afforded a person due process of law prior to a final commitment order. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979). Person is entitled to due process even if the person is committed temporarily to a state mental institution for evaluation. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979). Due process must be afforded in sanity inquiry. — Inquiry into the sanity of the person at the time of acquittal must be conducted so as to afford the person due process of law. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979). Due process requires only that the insanity acquittee be given a right to a hearing, which can be waived if the insanity acquittee, or the acquittee’s appointed representative or guardian ad litem, declines to file an application for 612 release. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980). Proving mental retardation does not violate due process. — Requirement that mental retardation must be proved beyond a reasonable doubt does not violate due process. Mosher v. State, 268 Ga. 555, 491 S.E.2d 348 (1997). Inmate required to prove mental retardation. — Since O.C.G.A. § 177-131 was previously held to be constitutional, the inmate was required to bear the burden of proving the inmate’s alleged mental retardation beyond a reasonable doubt. Head v. Stripling, 277 Ga. 403, 588 S.E.2d 226 (2003). Constitutionality of provisions regarding release. — Provisions of this section disallowing the filing of another application for release until one year has elapsed from the denial of the last preceding application and allowing release only upon court order do not offend current concepts of due process or equal protection of the laws. Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979). O.C.G.A. § 17-7-131 is not violative of due process through the statute’s requirement of judicial approval for the release of insanity acquittees not convicted of dangerous crimes, the statute’s presumption of continuing insanity at the release hearing, or the statute’s placement of the burden of proof on the insanity acquittee at the release hearing. Benham v. Ledbetter, 785 F.2d 1480 (11th Cir. 1986). Provision in O.C.G.A. § 17-7-131(f )(3) that a court, after rendering an adverse release decision in a release hearing, may not hear a further release application by the insanity acquittee until 12 months have elapsed, is not violative of due process, since insanity acquittees may, during the interval, bring habeas corpus petitions challenging the legality of their detention. Benham v. Ledbetter, 785 F.2d 1480 (11th Cir. 1986). Constitutionality of guilty but mentally ill category. — Creation of the category of guilty but mentally ill is not unconstitutionally vague and thus lacking in due process. Dimauro v. State, 185 Ga. App. 524, 364 S.E.2d 900 (1988). Constitutionality of burden of proof of fitness for release. — Insanity 17-7-131 acquittee is not denied equal protection of the law, if the acquittee is required to bear the burden of proving the acquittee’s fitness for release while other civil committees are not. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980). Prohibition against execution of mentally retarded. — O.C.G.A. § 177-131 does not wholly erode the constitutional prohibition against execution of the mentally retarded. Ferrell v. Head, 398 F. Supp. 2d 1273 (N.D. Ga. 2005). Constitutionality of differing treatment. — Judgment of acquittal by reason of insanity provides the state a rational reason for treating ‘‘insanity acquittees’’ differently from other persons involuntarily committed to state health facilities. Specifically, insanity acquittees have no right to be free of the burden of proof in commitment and release hearings. Also, it is not unreasonable to presume continued mental illness based on a judgment of not guilty by reason of insanity. Benham v. Ledbetter, 609 F. Supp. 125 (N.D. Ga. 1985), aff ’d, 785 F.2d 1480 (11th Cir. 1986). Life imprisonment and civil commitment did not constitute double jeopardy. — Civil commitment, following finding that the defendant was not guilty by reason of insanity of malice murder, and a sentence of life imprisonment based on convictions for felony murder, with a finding of guilty but mentally ill, did not violate the defendant’s double jeopardy rights under U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, as the civil commitment procedure under O.C.G.A. § 17-7-131 was not punitive in nature. Shepherd v. State, 280 Ga. 245, 626 S.E.2d 96 (2006), overruled on other grounds by McElrath v. State, 2020 Ga. LEXIS 127 (Ga. 2020). ‘‘Insane,’’ ‘‘Mentally Ill,’’ ‘‘Intellectual Disability’’ Defined What constitutes ‘‘mental illness.’’ — Person who is insane, that is, who is not legally responsible for the person’s own actions because the person cannot distinguish between right and wrong is mentally ill under this definition. Clark v. State, 151 Ga. App. 853, 261 S.E.2d 764 613 ‘‘Insane,’’ ‘‘Mentally Ill,’’ ‘‘Intellectual Disability’’ Defined (Cont’d) (1979), aff ’d, 245 Ga. 629, 266 S.E.2d 466 (1980). What constitutes delusional compulsion. — One is not criminally responsible when, though one has reason sufficient to distinguish between right and wrong, as to a particular act about to be committed, yet, in consequence of some delusion, the will is overmastered and there is no criminal intent, provided that the act itself is connected with the peculiar delusion under which the person is laboring. Hargroves v. State, 179 Ga. 722, 177 S.E. 561 (1934). Intermittent insanity is no excuse or justification for crime, unless the defendant was incapable of knowing right from wrong at the time the act was committed. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962). Weakmindedness alone is not a defense to crime. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962). Mental abnormality alone is not a defense to crime. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962). Mentally irresponsible at time of offense. — Mental abnormality is not a defense unless the accused was, at the time of the commission of the offense, mentally irresponsible under the test recognized by law in this state. The only exception to this is delusional insanity. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962). Test of mental irresponsibility. — Test is whether the accused had reason sufficient to distinguish between right and wrong in relation to the particular offense committed. Ross v. State, 217 Ga. 569, 124 S.E.2d 280 (1962). Defense of drug-caused mania or insanity. — Defense of mania or insanity, caused by the use of a drug, permanent and fixed in character, so as to destroy the knowledge of right and wrong as to the act, with the person laboring under such infirmity not responsible for the person’s crime, must amount to a plea of insanity at the time of the commission of the act under this section. Brand v. State, 123 Ga. App. 273, 180 S.E.2d 579 (1971). 17-7-131 Mental retardation definition not met. — Defendant’s motion for a new trial on the basis that the verdict was contrary to the evidence was properly denied when the defendant’s interaction with others, defendant’s letter writing, newspaper reading, and sports activities all indicated that the defendant did not meet the statutory definition of mental retardation in O.C.G.A. § 17-7-131(a)(3). Foster v. State, 272 Ga. 69, 525 S.E.2d 78, cert. denied, 531 U.S. 890, 121 S. Ct. 214, 148 L. Ed. 2d 151 (2000). In a death penalty case, a habeas court did not err in considering habeas corpus petitioner’s claim, raised for the first time in the habeas petition, that the petitioner was mentally retarded; the habeas court properly found that the petitioner’s intelligence test scores and school records failed to prove that the petitioner met the definition of mentally retarded under O.C.G.A. § 17-7-131(a)(3). Head v. Ferrell, 274 Ga. 399, 554 S.E.2d 155 (2001). In a death penalty case, the habeas corpus court correctly held that the defendant was not mentally retarded, and could thus be executed, when the evidence demonstrated that the defendant committed other crimes, one punishable by death, which required a certain degree of planning and intelligence, the defendant’s school records were devoid of any indication that the defendant was retarded, and crime scene photographs supported the state’s version of the crime scene and illustrated the resourcefulness displayed by the defendant to accomplish the defendant’s illustrated purpose. Morrison v. State, 276 Ga. 829, 583 S.E.2d 873 (2003), cert. denied, 541 U.S. 940, 124 S. Ct. 1662, 158 L. Ed. 2d 363 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Inmate was denied habeas corpus relief on a claim that the defendant was ineligible for the death penalty because the defendant was mentally retarded because the defendant failed to offer any evidence that the state habeas court and the state supreme court’s conclusions were based on an unreasonable determination of the facts in light of the evidence presented; the state habeas court noted that the 614 17-7-131 inmate provided no concrete evidence to demonstrate that the defendant fell within the scope of the definition of mental retardation under O.C.G.A. § 17-7-131, and the state supreme court rejected the claim citing numerous tests and records indicating that the inmate’s mental function, while below average, did not render the defendant mentally retarded. Ferrell v. Head, 398 F. Supp. 2d 1273 (N.D. Ga. 2005). In a habeas corpus proceeding with regard to a defendant’s conviction for murder and receiving the death sentence, a jury’s determination that the defendant was not mentally retarded was upheld as a rational trier of fact could have found that the defendant failed to meet the burden of proof that the defendant was mentally retarded by a preponderance of the evidence since the evidence showed that the jury heard evidence regarding six intelligence quotient (IQ) tests administered to the defendant during the defendant’s lifetime, with scores of 78, 84, 85, 68, 66 (which, due to a mathematical error, should have been 70), and 89; expert testimony established that IQ scores between 70 and 84, while indicating borderline intellectual functioning, did not indicate mental retardation; and there was testimony that the defendant checked out prison library books on a regular basis and was able to use the computer. Further, three state experts who examined the defendant opined that the defendant was not mentally retarded and three experts for the defendant disagreed and, although evidence was adduced indicating that the defendant exhibited brain dysfunction, the defendant’s own expert testified that there was no way to determine what caused the dysfunction and that a person can have brain dysfunction without being mentally retarded, with that expert also testifying that the use of drugs and alcohol can have a significant impact on brain function and that the defendant had reported using drugs and alcohol. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh’g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Jury Charge No ‘‘guilty but mentally ill’’ verdict for misdemeanor. — Trial court erred in permitting the jury to consider a verdict of guilty but mentally ill on a misdemeanor count of making harassing telephone calls as that verdict is available only in felony cases. Converting, on appeal, the verdict to guilty would have constituted an impermissible substantive change in the verdict, violative of O.C.G.A. § 17-9-40, and therefore the verdict had to be reversed. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996). When jury charge as to insanity mandatory. — This section made it mandatory for the trial judge to instruct the jury in line with the statute’s provisions. Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953). When a defendant pleads not guilty by reason of insanity, it is mandatory that the trial judge shall instruct the jury in line with the provisions of this section. Sanford v. State, 217 Ga. 825, 125 S.E.2d 478 (1962). When the evidence makes insanity at the time of the commission of an alleged offense an issue, it is mandatory for the trial judge to charge the provisions of this section. Morgan v. State, 224 Ga. 604, 163 S.E.2d 690 (1968). It was mandatory to charge the first part of this section relating to the form of the jury’s verdict in a case involving insanity at the time of the commission of the act. Hulsey v. State, 233 Ga. 261, 210 S.E.2d 797 (1974). Once the issue of insanity at the time of the commission of the alleged offense is raised by the evidence it is mandatory upon the trial judge to charge the jury under the provisions of this section relating to the form of the verdict in case the jury should find the defendant not guilty by reason of insanity. Williams v. State, 237 Ga. 399, 228 S.E.2d 806 (1976); Moore v. State, 142 Ga. App. 145, 235 S.E.2d 577 (1977). O.C.G.A. § 17-7-131 requires that in all criminal trials when an accused contends that the accused was insane or mentally incompetent at the time the acts charged against the accused were committed that the trial judge instruct the jury that in 615 Jury Charge (Cont’d) case of acquittal on such contention to specify in the jury’s verdict that an acquittal on account thereof is because of mental incompetence or insanity at the time of the commission of the act. Neal v. State, 160 Ga. App. 498, 287 S.E.2d 399 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991). O.C.G.A. § 17-7-131 mandates that the charge set forth in subparagraph (b)(3)(B) shall be given and the trial court erred by failing to give the charge. Spraggins v. State, 258 Ga. 32, 364 S.E.2d 861 (1988). Trial court did not err in giving the instructions mandated by O.C.G.A. § 17-7-131(b)(3), as such ensured that the jury did not improperly concern itself with the lesser-known punishments associated with an insanity defense. Foster v. State, 306 Ga. 587, 832 S.E.2d 346 (2019). Erroneous but harmless charge. — Since mental illness is not an element of the underlying offense, the burden of persuasion as to that issue is on the defendant. Further, the statutory requirement that mental illness be proved beyond a reasonable doubt is not constitutionally infirm. When the trial court instructs the jury that the court would be authorized to find the defendant guilty but mentally ill if the jury believed beyond a reasonable doubt that the defendant was guilty, but believed by a preponderance of the evidence that the defendant was mentally ill at the time of the commission of the offense, such a charge, while erroneous, has the effect of reducing the burden the defendant bears of showing mental illness, is beneficial, and does not require reversal. Hood v. State, 187 Ga. App. 88, 369 S.E.2d 348 (1988). Trial court’s instruction that if the jury believed beyond a reasonable doubt that the defendant was guilty and if the jury also believed by a preponderance of the evidence that the defendant was mentally ill at the time of the offense, then the jury would be authorized to find the defendant guilty but mentally ill, was erroneous, but harmless. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988). 17-7-131 Even though the charge did not adequately instruct the jury concerning the alternative verdict of not guilty by reason of insanity, the error was harmless because no evidence was presented to support such a verdict. McDuffie v. State, 210 Ga. App. 112, 435 S.E.2d 452 (1993). Even though the verdict form had erroneously provided the option of ‘‘guilty but mentally ill’’ instead of ‘‘guilty but mentally retarded,’’ the court’s curative actions were sufficient to render the error harmless. Lyons v. State, 271 Ga. 639, 522 S.E.2d 225 (1999). Though the trial court erred in charging the jury in defendant’s murder trial by including the language in the Standard Pattern Jury Instruction on mental retardation that improperly added ‘‘at the time of the commission of the offense,’’ no reversible error occurred because the trial court also included the requirement that the impairments in adaptive behavior had to manifest during defendant’s developmental period. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005). O.C.G.A. § 17-7-131 does not unconstitutionally shift the burden of proof. Because mental illness is not an element of the underlying offense, the defendant bears the burden of persuasion on that issue; and because a state may constitutionally require a criminal defendant to prove an insanity defense beyond a reasonable doubt, the provision in O.C.G.A. § 17-7-131(c)(2) that mental illness be proved beyond a reasonable doubt is not constitutionally infirm. Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 816, 83 L. Ed. 2d 809 (1985); Hood v. State, 187 Ga. App. 88, 369 S.E.2d 348 (1988). Statute places no burden on a defendant to prove that the defendant is not mentally ill, or that the defendant is guilty but mentally ill. The burden is on the state to prove that the defendant is guilty of the crime charged, including the requisite element of intent, beyond a reasonable doubt. The burden is on the defendant to prove defendant is not guilty by reason of insanity by a preponderance of the evidence. This latter requirement is 616 constitutional. Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985). If the defendant pleads insanity, has placed the defendant’s mental health in issue, and presumably has introduced evidence of the defendant’s mental illness, this does not constitute impermissible burden shifting for the court to charge the jury that it may consider a verdict of guilty but mentally ill. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985). Failure to give such mandatory instruction is error. Sanford v. State, 217 Ga. 825, 125 S.E.2d 478 (1962). Failure to give a charge to the jury when required by O.C.G.A. § 17-7-131 (3)(b) is reversible error. Guilford v. State, 258 Ga. 253, 368 S.E.2d 116 (1988). Giving a summary rather than a complete charge on insanity and mental illness as required by O.C.G.A. § 17-7-131 (3) was error. Moore v. State, 217 Ga. App. 207, 456 S.E.2d 708 (1995). Failure to instruct on ‘‘guilty but retarded’’ was harmless error. — Charge on the guilty but mentally retarded option under O.C.G.A. § 17-7-131(c) was mandatory, but failure to charge was harmless beyond a reasonable doubt, since the psychiatrist testified that the defendant was highly articulate, well-spoken and very bright, and that the defendant was so articulate and coherent that the psychiatrist had no reason to suspect mental retardation and the defendant presented no evidence to the contrary. Roberts v. State, 257 Ga. App. 296, 570 S.E.2d 708 (2002). Failure to instruct on ‘‘guilty but mentally retarded’’ reversible error. — When the defendant’s primary defense alleged mental incompetence, and expert testimony advanced that the defendant was mentally retarded, the trial court’s failure to instruct the jury that the jury could consider a verdict of guilty but mentally retarded in addition to verdicts of guilty, not guilty, not guilty by reason of insanity, and guilty but mentally ill was reversible error. Mack v. State, 206 Ga. App. 402, 425 S.E.2d 671 (1992). Failure to properly instruct jury requires grant of new trial. Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953). Instruction at sentencing phase not authorized. — In a prosecution for mal- 17-7-131 ice murder, the trial court did not err in refusing to charge at the sentencing phase that the jury could not return a death sentence if the jury found by a preponderance of the evidence that the defendant was mentally retarded; the procedure to foreclose the execution of mentally retarded defendants had been followed at the guilt-innocence phase of the trial when the jury rejected a ‘‘guilty but mentally retarded’’ verdict and, at the sentencing phase, the issue of the defendant’s purported mental retardation was no longer conclusive as to the defendant’s sentence, but was merely one of the mitigating factors which the jury would be authorized to consider. Burgess v. State, 264 Ga. 777, 450 S.E.2d 680 (1994), cert. denied, 515 U.S. 1133, 115 S. Ct. 2559, 132 L. Ed. 2d 813 (1995). If there is no evidence to support a charge on insanity under O.C.G.A. §§ 16-3-2 and 16-3-3, then a charge under O.C.G.A. § 17-7-131, with regard to the defense of insanity, never arises. Shirley v. State, 149 Ga. App. 194, 253 S.E.2d 787 (1979). Because the defendant failed to present any evidence from which a jury could conclude that the defendant did not know right from wrong when the defendant committed the criminal acts, the trial court did not err in declining to charge the jury pursuant to O.C.G.A. § 17-7-131(b)(1)(C) that the defendant could be found not guilty by reason of insanity under O.C.G.A. § 16-3-2; the defendant introduced no evidence of insanity, only lay witness testimony about generalized problems. McBride v. State, 314 Ga. App. 725, 725 S.E.2d 844 (2012). Defendant’s ineffective assistance of counsel claim failed based on the defense attorney not requesting a jury charge of not guilty by reason of insanity because the attorney testified at the hearing on the motion for a new trial that the attorney considered it but found no evidence to support such a defense theory; thus, it was reasonable trial strategy. Hosley v. State, 322 Ga. App. 425, 746 S.E.2d 133 (2013). Counsel not ineffective for not raising issue of defendant’s mental health. — Because the defendant pro- 617 Jury Charge (Cont’d) duced no expert testimony at the motion for new trial showing that a psychological evaluation would have aided an insanity defense, the defendant’s claim that counsel was ineffective for failing to investigate and raise the issue of the defendant’s mental health rested on speculation and failed for lack of demonstrated prejudice. Perkins v. State, 328 Ga. App. 508, 759 S.E.2d 626 (2014). If the defendant did not admit to committing the act charged. — If the defendant did not admit to committing any act that constitutes aggravated assault on a peace officer, the defendant did not establish the evidentiary foundation necessary for charging the jury on the affirmative defense of insanity. Kelley v. State, 235 Ga. App. 177, 509 S.E.2d 110 (1998). It was mandatory to charge the first part of former Code 1933, § 27-1503 (see O.C.G.A. § 17-7-131) relating to the form of the jury’s verdict. Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977). Jury charge as to form of verdict is only mandatory charge. — Only portion of this section which was mandatory for the judge to charge is that part dealing with the form of the verdict. Albert v. State, 152 Ga. App. 708, 263 S.E.2d 685 (1979). Charging entire language of section. — While inappropriate, it was not harmful error when the court charges the entire language of this section. Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977). Trial court did not err when the court substituted the words ‘‘became clear’’ for ‘‘manifested’’ with regard to the statutory definition of mental retardation contained within O.C.G.A. § 17-7-131(a)(3) because the terms ‘‘manifested’’ and ‘‘became clear’’ are synonymous under those circumstances. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005). Charging of provisions relating to consequences of acquittal for insanity. — It was inappropriate to charge the part of former Code 1933, § 27-1503 (see 17-7-131 O.C.G.A. § 17-7-131) relating to the consequences of a verdict of acquittal for insanity by the jury, but charging the latter part of that section and Ga. L. 1969, p. 505 (see O.C.G.A. § 37-3-85) in such a case, though inappropriate, does not amount to harmful error requiring a reversal of the judgment. Hulsey v. State, 233 Ga. 261, 210 S.E.2d 797 (1974). Charging the part of former Code 1933, § 27-1503 (see O.C.G.A. § 17-7-131) and Ga. L. 1969, p. 505 (see O.C.G.A. § 37-3-85), relating to the consequences of acquittal for insanity, though inappropriate, does not amount to harmful error requiring a reversal of the judgment. Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975), rev’d on other grounds, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). If the substance of former Code 1933, § 27-1503 (see O.C.G.A. § 177-131) was sufficiently charged, it was not necessary to charge that section in haec verba. Johnston v. State, 232 Ga. 268, 206 S.E.2d 468 (1974). Not including mandatory language not reversible error. — Court’s failure to charge the mandatory language of O.C.G.A. § 17-7-131(b)(3)(A) (proceedings upon plea of insanity), by failing to include the phrase ‘‘if ever’’ when explaining when the court is allowed to release the defendant from a mental health facility, was not reversible error, nor did the statute deprive the defendant of a fair trial or effective assistance of counsel. The charge given specified that the court would retain control over the defendant’s release and did not imply that the court would be required at some point to order the defendant’s release. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996). Although exclusion of the words ‘‘if ever’’ is harmless error in certain contexts, the better practice is to give the charge exactly as provided in O.C.G.A. § 17-7-131. Griffin v.