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315 Ga. 671
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S22A1328. MIDDLEBROOKS v. THE STATE.

ELLINGTON, Justice.

After Marina Middlebrooks pleaded not guilty by reason of

insanity to charges arising from the stabbing death of her daughter,

Sky Allen, a jury found Middlebrooks guilty of murder and cruelty

to children in the first degree.1 On appeal, Middlebrooks contends

that the trial court erred in allowing the State’s expert witness to

testify as to what happens when a person is found not guilty by

1 The crimes occurred on May 2, 2013. On July 10, 2013, a Columbia

County grand jury returned an indictment charging Middlebrooks with malice
murder (Count 1), felony murder predicated on aggravated assault (Count 2),
and cruelty to children in the first degree (Count 3). On January 26, 2016,
Middlebrooks was re-indicted on the same counts in Richmond County.
Following a February 2016 trial, a Richmond County jury found Middlebrooks
guilty on all three counts. On February 29, 2016, the trial court sentenced
Middlebrooks to serve life in prison without parole on Count 1 and to serve 20
years in prison on Count 3. The judgment indicated that Count 2 merged with
Count 1, although it was actually vacated by operation of law. See Bradley v.
State, 305 Ga. 857, 857 n.1 (828 SE2d 322) (2019). Middlebrooks filed a timely
motion for a new trial, which, through new counsel, she amended on May 27
and October 5, 2020. Following a hearing on November 24, 2020, the trial court
denied Middlebrooks’s motion for a new trial on August 19, 2021. Middlebrooks
filed a timely notice of appeal, and the case was docketed in this Court to the
August 2022 term and orally argued on November 8, 2022.
reason of insanity. In addition, Middlebrooks contends that “[t]he

trial court erred in restricting the testimony of [her] diagnosing

psychiatrist,” an employee of the Department of Veterans’ Affairs

(“VA”), “without following the correct procedure” under federal

regulations concerning the testimony of VA personnel in legal

proceedings. In a related claim, Middlebrooks contends that her

“trial counsel was ineffective in failing to object to the limitation of

[the witness’s] testimony by the [f]ederal [g]overnment and the

[p]rosecutor.” For the reasons explained below, we affirm.

After indictment in Columbia County, where Sky’s dead body

was discovered, the case was transferred to and re-indicted in

Richmond County, based on Middlebrooks’s pretrial statements that

placed the alleged criminal acts outside her Richmond County home.

Middlebrooks filed a notice of intent to raise the issue that she was

insane at the time of the acts charged against her. Before the trial

began, the State and Middlebrooks entered into a stipulation that,

“[o]n May [2], 2013, the Defendant, Marina Mae Middlebrooks,

acting alone, caused the death of Sky Lyric Allen, by stabbing her in

2
the neck. This act occurred in Richmond County, Georgia.” Because

the parties stipulated that Middlebrooks killed her daughter, the

primary issue the jury had to decide was Middlebrooks’s mental

capacity at the time she committed the crimes, with the possible

verdicts being not guilty, not guilty by reason of insanity, guilty but

mentally ill, or guilty.2 The jury was required to return a verdict of

not guilty by reason of insanity if the jury found beyond a reasonable

doubt that Middlebrooks committed the crimes charged in the

indictment and also found by a preponderance of the evidence that

2 OCGA § 17-7-131 (b) (1) provides:

In all cases in which the defense of insanity, mental illness,
or intellectual disability is interposed, the jury, or the court if tried
by it, shall find whether the defendant is:
(A) Guilty;
(B) Not guilty;
(C) Not guilty by reason of insanity at the time of the
crime;
(D) Guilty but mentally ill at the time of the crime, but
the finding of guilty but mentally ill shall be made only in
felony cases; or
(E) Guilty but with intellectual disability, but the
finding of intellectual disability shall be made only in felony
cases.
At the time of Middlebrooks’s trial, the fifth verdict option was “guilty but
mentally retarded.” Since July 1, 2017, the fifth option has been “guilty but
with intellectual disability.” See Ga. L. 2017, p. 471, § 3.

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she was legally insane at that time, that is, she did not have the

mental capacity to distinguish between right and wrong in relation

to the act.3 At the beginning of trial, the trial court read the parties’

stipulation to the jury and instructed the jury that, based on the

3 See OCGA §§ 16-3-2 (“A person shall not be found guilty of a crime if,

at the time of the act, omission, or negligence constituting the crime, the person
did not have the mental capacity to distinguish between right and wrong in
relation to such act.”); 17-7-131 (a) (“For purposes of this Code section, the term
. . . ‘[i]nsane at the time of the crime’ means meeting the criteria of Code
Section 16-3-2 or 16-3-3. However, the term shall not include a mental state
manifested only by repeated unlawful or antisocial conduct.”); 17-7-131 (c) (1)
(“The defendant may be found ‘not guilty by reason of insanity at the time of
the crime’ if he or she meets the criteria of Code Section 16-3-2 or 16-3-3 at the
time of the commission of the crime. If the court or jury should make such
finding, it shall so specify in its verdict.”); Bowman v. State, 306 Ga. 97, 100 (1)
(c) (829 SE2d 139) (2019) (“In Georgia, a defendant is presumed to be sane and
a defendant asserting an insanity defense has the burden to prove by a
preponderance of the evidence that he was insane at the time the crime was
committed.” (citation and punctuation omitted)).
We note that Middlebrooks’s counsel did not seek a jury instruction
based on the other Code section referenced in OCGA § 17-7-131 (c) (1), OCGA
§ 16-3-3, which provides: “A person shall not be found guilty of a crime when,
at the time of the act, omission, or negligence constituting the crime, the
person, because of mental disease, injury, or congenital deficiency, acted as he
did because of a delusional compulsion as to such act which overmastered his
will to resist committing the crime.” At the charge conference, defense counsel
stated, “[w]e are not claiming a justification delusion defense, [although] we do
have a compulsive delusion[,]” because there was no “proof of justification.” See
Buford v. State, 300 Ga. 121, 125 (1) (b) (793 SE2d 91) (2016) (“When a
delusional compulsion is the basis of an insanity defense, the delusion must be
one that, if it had been true, would have justified the defendant’s actions.”
(citation and punctuation omitted)); id. (holding that, because the defendant
“could not articulate the particulars of any delusion from which he was
suffering that would have justified his actions,” he could not “establish insanity
pursuant to OCGA § 16-3-3”).
4
stipulations that had been entered into, Middlebrooks’s “plea of not

guilty by reason of insanity frame[d] the issue that [the jury was]

sworn and empaneled to try in this particular case.”

The State presented the testimony of investigators and other

witnesses as to the circumstances of the crimes. That uncontested

evidence showed that, on May 2, 2013, a passerby saw

Middlebrooks’s car swerve out of its lane on Ray Owens Road in

Columbia County and then crash into a tree. The witness called 911.

First responders found Middlebrooks in the driver’s seat. She was

nude except for a sweatshirt and covered in blood. One first

responder testified that Middlebrooks “did not appear to be fully

conscious.” Middlebrooks told the first responders that “someone

had done something” to her, but provided no details. To most of the

first responders’ questions about what had happened to her, she

answered, “I don’t know. I don’t remember.” While tending to

Middlebrooks, first responders found her two-year-old daughter,

Sky, dead on the car’s rear floor, underneath a pile of clothes. Sky

was also unclothed, covered in dried blood, and had a gaping stab

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wound to her neck. Her body had already cooled. A bloody pair of

scissors lay in the front passenger seat. A medical examiner later

determined that Sky had suffered multiple stab wounds, one of

which severed a jugular vein, resulting in fatal blood loss. The

wounds were consistent with having been created by the sharp edges

of an opened pair of scissors. Middlebrooks had multiple puncture

wounds and lacerations to her neck, face, chest, arms, wrists, and

knee. Her neck wounds were severe enough to require intubation for

a few days.

After the State presented evidence of the circumstances of the

crimes, Middlebrooks called several witnesses in support of her

insanity defense. After being qualified as an expert, Dr. Geoffrey

McKee, a board-certified criminal forensic psychologist, testified

that he evaluated Middlebrooks in October 2014, when he spent 6

hours, 25 minutes with her, and February 2016, when he spent an

hour with her. In addition to administering psychological tests and

interviewing Middlebrooks, Dr. McKee reviewed records of previous

evaluations and treatment of Middlebrooks, including a four-week

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hospitalization at the VA hospital in the summer of 2011, when she

was diagnosed with “schizophreniform disorder” and with “post

traumatic stress disorder,” arising from her 13 months in combat

zones in Iraq. Dr. McKee testified that Middlebrooks was readmitted

to the VA hospital for two weeks in February 2012 and diagnosed

with “schizophrenia continuous, meaning that the symptoms were

recurring on a . . . near daily basis,” and “[s]chizophrenia paranoid

type, which means that she had delusions of persecution, feelings

that other people would hurt her even though there was no evidence

of that.” For example, the records showed that Middlebrooks

reported believing that other people wanted her to kill herself. Dr.

McKee also reviewed the records from Middlebrooks’s five-day

hospitalization following her arrest for Sky’s death and her

hospitalization at East Central Regional Hospital in Augusta that

began seven weeks after Sky’s death and lasted for about six weeks.

In reviewing the records of the VA hospitalizations and the post-

arrest hospitalizations, Dr. McKee looked for any indication in those

records that Middlebrooks was “malingering” — faking her

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symptoms — and he found none.

Dr. McKee testified about his own examinations of

Middlebrooks and described some of the fixed delusions she

reported, such as that “she could control and slow down time by

moving her hands in a particular way.” Dr. McKee testified that

Middlebrooks reported that, just before the crimes, she stripped

herself and her daughter naked, even removing their earrings,

“because she believed that to get to heaven she and her daughter

would have to die” by their own hands, “but that they had to be

naked because the clothes, including any jewelry, would block the

spirits from leaving” their bodies. Dr. McKee administered several

psychological tests to Middlebrooks, some of which are designed to

detect malingering, and he found no evidence of malingering during

the course of his own evaluation. Dr. McKee testified that

“[c]ommand auditory hallucinations are not uncommon in persons

with schizophrenia, but often with people who try to malinger

schizophrenia, when they are charged with a crime will tell the

examiner that they had a command auditory hallucination” ordering

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them to commit the particular crime. Dr. McKee found it a

significant indication that Middlebrooks was not malingering that,

according to the records from her hospitalization in the days after

the crimes, she “did not seize upon [a command hallucination] as a

way of explaining away all that she had done.” Based on

Middlebrooks’s history and his own evaluation, Dr. McKee

diagnosed her with paranoid schizophrenia. In Dr. McKee’s opinion,

at the time of the crimes, Middlebrooks “suffered from

schizophrenia, a serious psychiatric disorder[,]” that “as a result of

that disorder she did not have the mental capacity to know right

from wrong[,]” and that “the delusional component of that . . .

disorder overmaster[ed] her will to resist committing her offenses.”

Dr. McKee testified that, in his more than 40-year career, he had

evaluated more than 40 women who had killed one or more of their

own children. Out of those 40 cases, Dr. McKee had found that only

four of those mothers, including Middlebrooks, were insane.

Dr. Donna Schwartz-Watts, the chief psychiatrist for female

patients at Patrick B. Harris Psychiatric Hospital in Anderson,

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South Carolina, also testified as an expert witness. Dr. Schwartz-

Watts evaluated Middlebrooks in February 2014, when she spent

“over two hours” with her, and “saw her again a period of time later.”

Like Dr. McKee, Dr. Schwartz-Watts reviewed records of

Middlebrooks’s previous mental health treatment, including just

after she killed Sky. Dr. Schwartz-Watts also reviewed statements

by witnesses to the crash, Middlebrooks’s emergency treatment, and

her arrest; examined detention records; and interviewed

Middlebrooks’s mother and other witnesses. She found that

Middlebrooks exhibited a common symptom of schizophrenia, a type

of delusion called “ideas of reference,” and a very rare symptom,

called “clanging.” She explained that, rather than expressing

thoughts that were connected rationally, Middlebrooks would say

words in a sequence that were related to each other only by “the

sound of the words.” Dr. Schwartz-Watts described clanging as “one

of the most severe and regressed forms of a thought process, of

connecting thoughts together,” and testified that it is a difficult

symptom to fake. In Dr. Schwartz-Watts’s opinion, Middlebrooks’s

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notes and drawings when she was intubated in the days after the

crimes revealed signs of paranoid and delusional thinking. Dr.

Schwartz-Watts testified that Middlebrooks reported that, in the

days before she killed Sky, she was having recurrent delusional

thoughts and compulsions that she and Sky “each had to commit

suicide.” Middlebrooks said that she believed that God had given her

and Sky a “green aura” that made them “special and unique” and

that she and her daughter were being “persecuted” by people who

“would mean them harm” because “[t]hey would want to have access

to that gift[.]” Middlebrooks told Dr. Schwartz-Watts that, by

committing suicide, she and Sky would “go to heaven so that they

would be safe.” Dr. Schwartz-Watts testified that “morally

[Middlebrooks] believed that she was doing God’s will” and that, for

Sky to go to heaven, “[Sky] had to kill herself. [Middlebrooks] could

not kill her daughter. So she took the scissors and had her daughter

stab herself, helping her with the scissors. She stabbed her daughter

thinking it’s the daughter’s hand[.]” Then Middlebrooks stabbed

herself and started driving to the marina, where she planned to

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finish killing herself. Middlebrooks explained to Dr. Schwartz-Watts

that she was not completely naked when she crashed into the tree,

because she put on a sweater after seeing a police officer stop

another car and she did not want the police to stop her and prevent

her from reaching the marina and completing her suicide. Based on

Middlebrooks’s history of paranoid delusions and hallucinations, her

psychotic behavior around the time of the crimes, and psychotic

thinking that Dr. Schwartz-Watts personally observed during her

evaluation sessions, she diagnosed Middlebrooks with acute

schizophrenia. In Dr. Schwartz-Watts’s opinion, at the time of the

offense, Middlebrooks did not “recogniz[e] what she was doing was

wrong,” but thought “she was doing the right thing” when she killed

Sky.

Dr. Donald Evans, a staff psychiatrist at the VA Medical

Center in Augusta, testified about Middlebrooks’s two prior

hospitalizations in that facility.4 He testified that in July 2011,

4 As discussed in Division 2, infra, Dr. Evans testified as a fact witness

only, not as an expert.
12
Middlebrooks, an Iraq War veteran, “was admitted in a psychotic

state, meaning[ ] her reality was so distorted that she couldn’t trust

her senses.” That hospitalization lasted approximately four weeks.

During that time, Dr. Evans testified, Middlebrooks expressed that

“[s]he was disturbed by what she described as people knowing what

thoughts were in her head, putting thoughts in her head, or taking

some of those thoughts out. And then she had some paranoid ideas

that people were going to hurt her, and her physiology reflected

that.” Middlebrooks was placed on antipsychotic medication that

was “meant to help return thinking to cohesive functioning” and

“quiet down” distorted thinking in the form of hallucinations or

delusions. Dr. Evans read from a progress note in Middlebrooks’s

chart, showing that the medications were given to treat

“schizophreniform,” and he explained that “[s]chizophreniform is a

diagnosis for a disturbance of perceptions that last[s] for a period of

less than six months.” He testified that, “[i]f that disturbance goes

beyond six months then it becomes schizophrenia, and both of those

conditions I diagnosed.”

13
Middlebrooks’s mother and father testified about their

daughter’s mental breakdown in 2012, which resulted in the second

hospitalization at the VA Hospital in Augusta. They found

Middlebrooks walking aimlessly down the middle of a busy street,

and she could not answer where she was going. When her father was

driving her home, she tried to jump out of his truck. She told her

father that he was the devil or “something evil” and screamed “don’t

kill me.” Middlebrooks’s father testified that, after Middlebrooks

returned from combat service in Iraq, she had changed — her face

was “blank,” she “start[ed] forgetting things,” her “patience [was]

shot,” and, when he looked in her eyes, “something was missing,

something was gone.” Middlebrooks sometimes told her mother that

she was hearing voices. In the weeks before Sky’s death,

Middlebrooks’s mother thought that Middlebrooks seemed

withdrawn and that something was wrong with her. Middlebrooks’s

sister and brother-in-law testified, describing several incidents of

Middlebrooks’s “belligerent” and bizarre behavior in the years

between her return from Iraq in 2006 and Sky’s death in 2013,

14
including having loud arguments with herself and accusing

strangers of “talking bad about her and looking at her funny.” In

early 2013, Middlebrooks told her sister that VA doctors diagnosed

her with schizophrenia. Middlebrooks did not testify.

The State presented the testimony of Middlebrooks’s cellmate

at the Columbia County jail in November 2014, Kala Stewart, as to

statements Middlebrooks made while awaiting trial. Stewart

testified that Middlebrooks told her that “she killed her child before

she left the house, her driveway,” and “she did it out of spite of her

boyfriend.” Stewart testified that Middlebrooks told her that “her

lawyer was going for mental illness” as a defense, but Middlebrooks

told Stewart that “she [was not] mentally ill.” Middlebrooks told

Stewart that she did not think her case was going well.

In addition, the State presented expert testimony to rebut the

testimony of Middlebrooks’s expert witnesses that they found no

evidence of malingering, either in Middlebrooks’s past mental

health records or in their own evaluations. Dr. Michael Vitacco, after

being qualified as an expert in forensic psychology, testified that he

15
evaluated Middlebrooks at the East Central Regional Hospital,

where he serves as a licensed clinical psychologist, over the course

of 40 days in June and July 2013, beginning seven weeks after Sky’s

death. In addition to formally interviewing Middlebrooks three

times and giving her psychological tests, meetings lasting a total of

3 hours and 20 minutes, Dr. Vitacco spoke with her briefly

approximately 20 times over her 40-day stay. He also communicated

with her treating psychiatrist and other caregivers who interacted

with Middlebrooks for extended periods daily. After Middlebrooks

returned to the jail, he and a colleague prepared a Criminal

Responsibility Evaluation report and a Competency to Stand Trial

Evaluation report.

In Dr. Vitacco’s opinion, other practitioners’ diagnoses of

schizophrenia were not supported by the evidence, one reason being

that the records showed that Middlebrooks’s symptoms improved

during each hospitalization much more quickly than would typically

happen in cases of acute schizophrenia. Dr. Vitacco testified that,

during interviews with him, Middlebrooks reported hearing voices

16
and behaved consistently with that symptom, but she would behave

“quite differently,” appearing to be unaffected by hallucinations,

when she was “away from the people who were interviewing her.”

Dr. Vitacco noted that, according to Middlebrooks’s mental health

records, she reported paranoid delusions that “people were out to get

her,” but “at no point” before she killed Sky “did she endorse a

delusion consistent with killing her child.” He also found it

significant that Middlebrooks never reported any religious delusions

until after she killed Sky and was being evaluated for criminal

responsibility, at which point she reported a religious delusion that

she was on a mission from God to help Sky go to heaven. Dr. Vitacco

testified that Middlebrooks’s description of the events “changed

dramatically” and evolved from telling first responders that she had

no recollection of the entire event, to telling detectives that nothing

happened and Sky was still alive, and then, “[f]ast forward just eight

weeks and she had a perfect recollection, once she arrived at the

hospital, of everything that happened in that car, including being

able to describe the last minutes of her daughter’s life.” Dr. Vitacco

17
believed that, after being given the Structured Interview of Reported

Symptoms test, Middlebrooks falsely reported a version of some of

the specific hallucinations that were questions on the test. He

testified that she reported “a slew of new symptoms” after she killed

Sky, “each one self-serving to justify the death of her daughter[,]”

but she did not display the behavioral “signs” of someone

experiencing the reported symptoms. Staff members saw

Middlebrooks “greeting [other patients] warmly” and laughing with

them — she was even “voted vice-president of [her] unit because her

peers liked her so much” — and she followed hospital rules and

behaved appropriately in classes and group sessions. Dr. Vitacco

testified that, “on several occasions[,]” after a class or group,

Middlebrooks “would approach the group leader” and ask specific

questions “about the insanity defense” and “how . . . one go[es] about

it.” During the last week of her 40-day stay at the hospital,

Middlebrooks told her treating psychiatrist that she was “feeling

hopeful . . . about the possibility of building [a not guilty by reason

of insanity] case.”

18
Dr. Vitacco defined malingering as “the intentional production

of symptoms in order to basically get out of something,” such as, in

the criminal justice context, “to get out of going to prison or going to

trial.” After reviewing evidence about Middlebrooks’s behavior in

the few days surrounding Sky’s death, including a videotaped police

interview, reviewing the VA records, personally interviewing and

observing Middlebrooks, and administering tests designed, in part,

to detect malingering, Dr. Vitacco concluded that Middlebrooks was

“retrospectively malingering,” that is, feigning having had

symptoms at the time of Sky’s death in order to avoid criminal

responsibility for the death of her daughter.

Based on the totality of the evidence Dr. Vitacco reviewed, his

professional opinion was that, “when [Middlebrooks] killed her

daughter[,]” she “was not mentally ill”; specifically, she was not

“psychotic” or suffering from “schizophrenia[,]” which is a “thought

disorder.” Dr. Vitacco testified that Middlebrooks was diagnosed,

during her hospitalization at East Central Regional Hospital, with

post-traumatic stress disorder and with “a series of personality

19
disorders[,]” which are “maladaptive traits” that are “not considered

. . . disorder[s] of thought or mood that substantially impair[ ] one’s

judgment, one’s behavior, one’s ability to recognize reality[.]” In

terms of personality disorders, Dr. Vitacco testified that

Middlebrooks was diagnosed with “borderline personality disorder”

and “adjustment disorder.” Despite these diagnoses, in Dr. Vitacco’s

expert opinion, when Middlebrooks killed her daughter, “she was

very aware of right from wrong” and “was very aware that murder

was against the law, both morally wrong and legally wrong.” He

testified that he did not believe that Middlebrooks was “experiencing

a delusional compulsion that overmastered her will” at the time of

the crime and that, even if he did believe her, the nature of the

delusion she reported would not have justified the act of killing her

daughter. In Dr. Vitacco’s opinion, Middlebrooks was simply “angry

and she took it out on her two-year-old child.” Asked if he had “any

personal stake in the outcome of this case[,]” Dr. Vitacco replied that

he had no personal stake in the case and described himself as “a

state employee and a psychologist” who was not “paid by the

20
prosecution or the defense” and was “simply a [j]udge’s witness.”

At the end of Dr. Vitacco’s direct testimony, the prosecutor

asked him “what happens when somebody is found not guilty by

reason of insanity[?]” Defense counsel did not object before Dr.

Vitacco responded that the person “would come to our hospital for a

period of 30 days. And then we would evaluate that individual . . . to

determine if they were mentally ill . . . and dangerous to themselves

or others. And then we would have a hearing in 30 days to determine

if they could be released[, as required by] state law[.]” The

prosecutor asked, “by law, if that person is not a danger to themself

or others and is not suffering from a mental illness, what is the

[c]ourt obligated to do?” Dr. Vitacco answered, “[A]ccording to the

Supreme Court[, the trial court would] be obligated to release that

individual.” Middlebrooks’s counsel objected to “this man giving a

legal opinion” and moved to strike the testimony, arguing that

“Georgia law tells us what the law is. [Such a person does not] get

out until you say they get out. . . . [T]he [j]udge gives the law . . . not

the State’s witness.” The trial court overruled the objection and

21
declined to strike the testimony.

1. Middlebrooks contends that the trial court abused its

discretion in overruling her objection to Dr. Vitacco’s testimony

about what happens after a jury finds a criminal defendant not

guilty by reason of insanity and in denying her motion to strike the

testimony. She contends that the testimony constituted improper

legal opinion testimony and that the law should have come only from

the judge. In addition, Middlebrooks argues that Dr. Vitacco’s

testimony paraphrased parts of OCGA § 17-7-131, pertaining to

evaluation and commitment following a verdict of not guilty by

reason of insanity, information that should not have been conveyed

to the jury, and that his paraphrase was incomplete and misleading.

Middlebrooks argues that Dr. Vitacco’s reference to those

aspects of the law was especially harmful because he described

himself as the “[j]udge’s witness” and because he implied that he

personally would be evaluating her after verdict. Because Dr.

Vitacco had testified that he had already found that Middlebrooks

was merely malingering and not mentally ill, Middlebrooks

22
contends that the testimony improperly encouraged the jury to

believe that, if the jury returned a verdict of not guilty by reason of

insanity, the trial court would have no choice but to release her

immediately after a 30-day post-trial evaluation. And she argues

that the trial court’s instruction about the consequences of a verdict

of not guilty by reason of insanity did not correct and override Dr.

Vitacco’s misleading paraphrase of OCGA § 17-7-131, because the

court’s instruction did not directly contradict Dr. Vitacco’s statement

and could be understood by the jury as complementary with that

testimony. She also argues that the trial court’s instruction that the

jury is not to concern itself with punishment did not alleviate the

harm caused by the statement because commitment after a not

guilty by reason of insanity verdict is not in the nature of

punishment and therefore the instruction about the jury not

concerning itself with punishment did not apply.

When an accused pleads not guilty by reason of insanity at the

time of the crime, the Criminal Procedure Code requires the trial

court to instruct the jury in specific and limited terms regarding the

23
consequences of each potential verdict.5 See OCGA § 17-7-131 (b) (3).

One of these instructions is that, “should you find the defendant not

guilty by reason of insanity at the time of the crime, the defendant

will be committed to a state mental health facility until such time,

if ever, that the court is satisfied that he or she should be released

5 OCGA § 17-7-131 (c) provides in pertinent part:

In all criminal trials in any of the courts of this state wherein
an accused shall contend that he or she was insane, mentally ill,
or intellectually disabled at the time the act or acts charged
against him or her were committed, the trial judge shall instruct
the jury that they may consider, in addition to verdicts of “guilty”
and “not guilty,” the additional verdicts of “not guilty by reason of
insanity at the time of the crime,” “guilty but mentally ill at the
time of the crime,” and “guilty but with intellectual disability.”
See Foster v. State, 283 Ga. 47, 49 (2) (656 SE2d 838) (2008) (“When a defense
of insanity has been interposed, OCGA § 17-7-131 (c) requires that the jury be
instructed to consider all five verdict options set forth therein. The failure to
charge on all five options is harmless error if there is no evidence to support
the verdict option or options omitted.” (footnote omitted)); see also Durrence v.
State, 287 Ga. 213, 216 (1) (a) n.4 (695 SE2d 227) (2010) (Recognizing the clear
legal distinctions between being insane at the time of the crime and being
mentally ill or mentally retarded, which was the fifth verdict option at the
time, each of which requires different forms of proof, “and their correlating
similarities, OCGA § 17-7-131 (c) requires that the jury be instructed to
consider all five verdict options set forth therein when a defense of insanity is
raised.”). In this case, there was no evidence of any mental retardation or
intellectual disability, and neither the trial court’s jury charge nor the verdict
form included the verdict option of “guilty but mentally retarded.” Although
OCGA § 17-7-131 (c) requires that the jury be instructed to consider all five
verdict options set forth in the statute, Middlebrooks does not claim that it was
error to omit the fifth option in her case.

24
pursuant to law.” OCGA § 17-7-131 (b) (3) (A).6 See Foster v. State,

306 Ga. 587, 590-592 (2) (a) (832 SE2d 346) (2019).

This Court has explained that the jury instructions
required by OCGA § 17-7-131 (b) (3) create a limited
exception to the general rule proscribing consideration of
the consequences of a guilty verdict. This exception
protects the defendant’s right to an impartial verdict by

6 In full, OCGA § 17-7-131 (b) (3) provides:

(3) In all cases in which the defense of insanity, mental
illness, or intellectual disability is interposed, the trial judge shall
charge the jury, in addition to other appropriate charges, the
following:
(A) I charge you that should you find the defendant not
guilty by reason of insanity at the time of the crime, the
defendant will be committed to a state mental health facility
until such time, if ever, that the court is satisfied that he or
she should be released pursuant to law.
(B) I charge you that should you find the defendant
guilty but mentally ill at the time of the crime, the defendant
will be placed in the custody of the Department of
Corrections which will have responsibility for the evaluation
and treatment of the mental health needs of the defendant,
which may include, at the discretion of the Department of
Corrections, referral for temporary hospitalization at a
facility operated by the Department of Behavioral Health
and Developmental Disabilities.
(C) I charge you that should you find the defendant
guilty but with intellectual disability, the defendant will be
placed in the custody of the Department of Corrections,
which will have responsibility for the evaluation and
treatment of the mental health needs of the defendant,
which may include, at the discretion of the Department of
Corrections, referral for temporary hospitalization at a
facility operated by the Department of Behavioral Health
and Developmental Disabilities.

25
correcting any misconceptions jurors may have that a
verdict of not guilty by reason of insanity, guilty but
mentally ill, or guilty but with intellectual disability
would result in the defendant’s immediate release (as
does a verdict of not guilty). . . . Once the jury
understands the nature of these particular verdicts, it can
focus solely on the mental condition of the defendant and
decide that issue free from concerns about whether and
how the defendant might be punished.

Id. at 593 (2) (b) (citation and punctuation omitted).

In this case, Dr. Vitacco introduced aspects of the consequences

of a verdict of not guilty by reason of insanity that appear in parts

of OCGA § 17-7-131 and the statutory criteria for involuntary civil

commitment7 that are not pertinent to the issues to be decided by

7 OCGA § 17-7-131 (d) provides:

Whenever a defendant is found not guilty by reason of
insanity at the time of the crime, the court shall retain jurisdiction
over the person so acquitted and shall order such person to be
detained in a state mental health facility, to be selected by the
Department of Behavioral Health and Developmental Disabilities,
for a period not to exceed 30 days from the date of the acquittal
order, for evaluation of the defendant’s present mental condition.
Upon completion of the evaluation, the proper officials of the
mental health facility shall send a report of the defendant’s
present mental condition to the trial judge, the prosecuting
attorney, and the defendant’s attorney, if any.
OCGA § 17-7-131 (e) (1) provides:
After the expiration of the 30 days’ evaluation period in the
state mental health facility, if the evaluation report from the
Department of Behavioral Health and Developmental Disabilities

26
the jury. See OCGA § 17-7-131 (b) (1). And he did so in a way that

could have been misleading. Specifically, Dr. Vitacco referred to an

evaluation at “our hospital,” while the statute provides that a person

found not guilty of a crime by reason of insanity would be detained

at a state mental health facility chosen by the Department of

Behavioral Health and Developmental Disabilities. See OCGA § 17-

7-131 (d). More importantly, his statement that, after 30 days’

evaluation, “we would have a hearing” to determine whether the

indicates that the defendant does not meet the inpatient
commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title
37, the trial judge may issue an order discharging the defendant
from custody without a hearing.
After a verdict of not guilty by reason of insanity, the trial judge
determines under specified procedures whether the defendant meets the
statutory inpatient-commitment criteria. See OCGA §§ 37-3-1 (9.1)
(“‘Inpatient’ means a person who is mentally ill and . . . [w]ho presents a
substantial risk of imminent harm to that person or others, as
manifested by either recent overt acts or recent expressed threats of
violence which present a probability of physical injury to that person or
other persons . . . and . . . [w]ho is in need of involuntary inpatient
treatment.”); 37-3-83 (g) (If, after a specified process, the designated
medical officer determines that an involuntarily hospitalized person “is
not a person who has mental illness requiring involuntary treatment,
the person shall be immediately discharged from involuntary
hospitalization[.]”); 37-3-85 (providing for regular review of service plans
for patients receiving involuntary inpatient treatment and for
modification of plans, including by discharge, as medically appropriate).

27
person was legally entitled to be released obscured the fact that the

trial court would “retain jurisdiction” over Middlebrooks, OCGA §

17-7-131 (d),8 and that she could only be discharged from

involuntary commitment by order of the trial court in accordance

with procedures specified in the Code section. See OCGA § 17-7-131

(f).9

8 See also OCGA § 17-7-131 (e) (4) (If, after the 30-day evaluation of the

defendant’s mental condition and a hearing, if ordered, under OCGA § 17-7-
131 (d), “the judge determines that the defendant meets the [statutory]
inpatient commitment criteria . . . , the judge shall order the defendant to be
committed to the Department of Behavioral Health and Developmental
Disabilities to receive involuntary treatment . . . or to receive services” under
the Mental Health Code.).
9 OCGA § 17-7-131 (f) provides:

A defendant who has been found not guilty by reason of
insanity at the time of the crime and is ordered committed to the
Department of Behavioral Health and Developmental Disabilities
under subsection (e) of this Code section may only be discharged
from that commitment by order of the committing court in
accordance with the procedures specified in this subsection:
(1) Application for the release of a defendant who has
been committed to the Department of Behavioral Health and
Developmental Disabilities under subsection (e) of this Code
section upon the ground that he does not meet the civil
commitment criteria under Chapter 3 of Title 37 or Chapter
4 of Title 37 may be made to the committing court, either by
such defendant or by the superintendent of the state hospital
in which the said defendant is detained;
(2) The burden of proof in such release hearing shall
be upon the applicant. The defendant shall have the same
rights in the release hearing as set forth in subsection (e) of

28
Closing arguments were not transcribed, and we cannot

discern whether either side’s argument clarified Dr. Vitacco’s

response to the question.10 By the same token, we cannot assume

that the prosecutor’s argument amplified the implication that

within a short period the trial court might be obligated to order that

Middlebrooks be released. In the trial court’s final charge to the jury,

the court instructed the jury as required by OCGA § 17-7-131 (b) (3)

regarding the consequences of each of the possible verdicts,

including that, if the jury should find Middlebrooks not guilty by

reason of insanity, she would be committed until such time, if ever,

this Code section; and
(3) If the finding of the court is adverse to release in
such hearing held pursuant to this subsection on the
grounds that such defendant does meet the inpatient civil
commitment criteria, a further release application by the
defendant shall not be heard by the court until 12 months
have elapsed from the date of the hearing upon the last
preceding application. The Department of Behavioral Health
and Developmental Disabilities shall have the independent
right to request a release hearing once every 12 months.
10 At the hearing on Middlebrooks’s motion for a new trial, her appellate

counsel asked her trial counsel, “During the closing argument did you discuss
the effect of a not guilty by reason of insanity verdict?” Her trial counsel did
not answer “yes” or “no” but only stated that he did not remember everything
he said in closing argument.
29
the court was satisfied that she should be released pursuant to law.

The trial court’s jury charge did not address the 30-day evaluation

procedure under OCGA § 17-7-131 (d) and the statutory criteria for

involuntary civil commitment that Dr. Vitacco referenced.

We can see that Dr. Vitacco’s testimony about the

consequences of a verdict of not guilty by reason of insanity, if

credited by jurors as a correct statement of applicable law, could

have reinforced, rather than corrected, any misconceptions jurors

may have had that only a guilty verdict would prevent

Middlebrooks’s nearly immediate release. If taken in this light, Dr.

Vitacco’s testimony undermined an essential purpose of OCGA § 17-

7-131. See Foster, 306 Ga. at 593 (2) (b). Given the narrow focus of

the statutorily prescribed jury instructions, the State should not

have elicited such extraneous testimony. Assuming the trial court

erred in allowing the testimony to stand, we must consider whether

the error was harmless to determine if a new trial is warranted. See

Jones v. State, 315 Ga. 117, 122 (4) (880 SE2d 509) (2022)

(“Erroneous evidentiary rulings are subject to a harmless-error

30
test.”). The harmless-error test applicable in this case is that for

nonconstitutional error.

A nonconstitutional error is harmless if the State shows
that it is highly probable that the error did not contribute
to the verdict, an inquiry that involves consideration of
the other evidence heard by the jury. In determining
whether the error was harmless, we review the record de
novo, and we weigh the evidence as we would expect
reasonable jurors to have done so as opposed to viewing it
all in the light most favorable to the jury’s verdict.

Id. (citations and punctuation omitted); Johnson v. State, 238 Ga.

59, 61 (230 SE2d 869) (1976) (discussing and adopting the highly-

probable test for nonconstitutional errors).11

Middlebrooks’s burden in asserting the insanity defense was to

prove by a preponderance of the evidence that she was mentally

11 To compare the test that governs the determination of harmlessness

when an evidentiary ruling amounts to constitutional error, see Moore v. State,
315 Ga, 263, 271 (3) (b) (882 SE2d 227) (2022) (“A constitutional error is
harmless if the State can prove beyond a reasonable doubt that the error did
not contribute to the verdict, such as when the evidence at issue is cumulative
of other properly-admitted evidence or when the evidence against the
defendant is overwhelming.” (citation and punctuation omitted)); see also Hill
v. State, 310 Ga. 180, 188-189 (5) (850 SE2d 110) (2020) (alleged violation of
the privilege against unreasonable searches); Ensslin v. State, 308 Ga. 462,
473 (2) (d) (841 SE2d 676) (2020) (alleged violation of the privilege against self-
incrimination); McCord v. State, 305 Ga. 318, 321 (2) (a) (825 SE2d 122) (2019)
(alleged violation of the right to confront witnesses).
31
incapable of distinguishing between right and wrong regarding the

particular acts charged. See Bowman v. State, 306 Ga. 97, 100 (1) (c)

(829 SE2d 139) (2019). As recounted above, opinion evidence given

by Drs. McKee and Schwartz-Watts supported a finding that

Middlebrooks’s mental illness of acute schizophrenia with delusions

rendered her incapable of distinguishing between right and wrong

with regard to killing Sky. On the other hand, Dr. Vitacco’s opinion

evidence supported the contrary finding that Middlebrooks was

mentally capable of distinguishing between right and wrong

regarding the act of fatally stabbing her daughter. His testimony

included detailed descriptions of the distinctions between disorders

of thought — disorders, such as schizophrenia, that may rob a

person of the mental capacity to distinguish right from wrong at the

time of a criminal offense — and other mental health conditions that

do not typically have that effect. Dr. Vitacco’s expert opinion that

Middlebrooks did not have a mentally incapacitating thought

disorder when she fatally stabbed Sky was based in part on his

personal observation that Middlebrooks’s behavior was often

32
inconsistent with the symptoms she reported. In addition, he

testified that he learned from hospital staff members that

Middlebrooks actively sought information about how to “go about”

and “build” an insanity defense. The evidence that Dr. Vitacco

formed his opinions after interacting with and observing

Middlebrooks much closer in time to the crimes and on many more

occasions than had Drs. McKee and Schwartz-Watts is a factor in

assessing the weight of Dr. Vitacco’s expert opinion that

Middlebrooks was faking mental illness to avoid criminal

responsibility for killing her daughter. Another factor is evidence,

introduced through the testimony of Middlebrooks’s cellmate, that

Middlebrooks denied being mentally ill, despite her lawyer’s plan to

present a mental illness defense, and admitted that she killed her

daughter out of spite.

The State’s burden under the applicable harmless-error test —

showing that “it is highly probable that the error did not contribute

to the verdict” — is a heavy one. Even so, to overturn the jury’s

verdicts on the basis of Dr. Vitacco’s improper testimony, there must

33
be more than a theoretical possibility that the error contributed to

the verdicts. In assessing nonconstitutional error, we do not look to

a single aspect of Dr. Vitacco’s testimony, divorced from the context

of the entire trial. We consider all of the evidence, and we weigh the

evidence as we would expect reasonable jurors to have done. See

Jones, 315 Ga. at 122 (4).12 Having reviewed all of the evidence de

novo and weighed it as we would expect reasonable jurors to have

done, we conclude that it is highly likely that Dr. Vitacco’s brief

testimony about the general consequences of a verdict of not guilty

by reason of insanity was not an important factor for the jury

compared to the substantial evidence that Middlebrooks had the

mental capacity to distinguish right from wrong in killing Sky.

Because it is highly probable that the trial court’s ruling on

Middlebrooks’s objection and motion to strike the testimony did not

contribute to the verdict, a new trial is not warranted. See Brookins

12 See also Johnson, 238 Ga. at 61 (Even an error that is “relevant to the

issues in dispute, not cumulative of other evidence, not beneficial to the
defendant[,] and uncorrected by the trial court . . . may nevertheless be
harmless in the context of the entire case.”).
34
v. State, 315 Ga. 86, 99 (5) (879 SE2d 466) (2022).

2. (a) Middlebrooks contends that “[t]he trial court erred in

restricting” Dr. Evans’s testimony to non-expert matters “without

following the correct procedure” under federal regulations

concerning the testimony of VA personnel in legal proceedings.13

This claim fails because Middlebrooks failed to preserve any error

in this regard for ordinary appellate review and she failed to show

plain error.

The record shows that, at the beginning of Middlebrooks’s

presentation of evidence, an assistant United States Attorney

accompanied Dr. Evans to court and advised the trial court that

federal law required approval from the federal government anytime

13 See 38 CFR §§ 14.800 through 14.810, establishing policy, assigning

responsibilities, and prescribing procedures with respect to the testimony of
VA personnel and production of department records in federal, state or other
legal proceedings. Section 14.808 (a) provides in relevant part: “VA personnel
shall not provide, with or without compensation, opinion or expert testimony
in any legal proceedings concerning official VA information, subjects or
activities, except on behalf of the United States or a party represented by the
United States Department of Justice[,]” absent official authorization by the
responsible VA official. Section 14.804 sets out the types of factors VA
personnel responsible for making the decision whether to authorize the
disclosure of VA records or information or the testimony of VA personnel
should consider.
35
a federal employee is called as a witness in state court. The federal

attorney reported that, after defense counsel requested that Dr.

Evans testify, the VA Office of General Counsel authorized him to

testify within boundaries, specifically that Dr. Evans could testify

about his personal observations of Middlebrooks, about

conversations he had with her, and about the contents of her medical

records, but he could not serve as an expert witness or answer

hypothetical questions. The prosecutor then argued that, “[i]f [Dr.

Evans] can’t testify as an expert witness[,] then he can’t render an

opinion as to his diagnosis [of Middlebrooks] back in 2011 and 2012.”

Initially, the prosecutor framed an objection based on relevance,

asserting if Dr. Evans could not give expert opinion testimony, then

none of his testimony would be relevant. Defense counsel stated that

he would not be asking for “a present diagnosis,” but for “a historical

diagnosis,” and argued that such testimony would not constitute

expert testimony.

In the ensuing colloquy among the trial court and counsel, the

court asked if defense counsel had any legal authority “that

36
support[ed] what [the defense] want[ed] to go into [during his

examination of Dr. Evans] based on the restrictions that have been

placed on [his] testimony.” Defense counsel responded that he

intended to ask Dr. Evans about “the nature of [Middlebrooks’s]

hospitalization[,] . . . why she was in the hospital[,] . . . how long she

was in the hospital, and whether or not she was confined in the

hospital.” After a recess, defense counsel, “in an effort to compromise

this issue[,] . . . agree[d] not to ask [Dr. Evans] about his diagnosis”

of Middlebrooks. Defense counsel described Dr. Evans as an

“essential” witness, because he had “been [Middlebrooks’s]

caretaker in the VA mental hospital twice in the years before this

crime occurred[,]” and argued that if he was prohibited from

testifying Middlebrooks would be “deprived of the right of

compulsory process and [her] constitutional rights under both the

State and [f]ederal constitution[s], [her] Sixth Amendment rights.”

Softening the State’s earlier position, the prosecutor stated, “I’m not

objecting to him . . . testifying.” The trial judge stated, “I’m not going

to . . . prohibit him from testifying, but based on restrictions that are

37
in place it does not appear that he can render a diagnosis.” Defense

counsel responded, “I understand.” The prosecutor advised that he

would object “based on [a lack of] foundation” to any question “that

call[ed] for an opinion[,] . . . including the diagnosis[,]” because such

an opinion could only “be rendered by an expert[.]” Defense counsel

responded, “[w]e can handle that,” the court summoned the jury, and

Dr. Evans took the stand.

Assuming without deciding that the trial court affirmatively

ruled that Dr. Evans was prohibited from “render[ing] a diagnosis,”

the record establishes that the defense ultimately withdrew any

challenge to such ruling. Without preservation of error as provided

in OCGA § 24-1-103, we review an evidentiary ruling only for plain

error pursuant to OCGA § 24-1-103 (d). See Ellington v. State, 314

Ga. 335, 343 (3) (877 SE2d 221) (2022); Lofton v. State, 309 Ga. 349,

358 (4) (846 SE2d 57) (2020); Martin v. State, 306 Ga. 747, 749 (2)

(833 SE2d 122) (2019). To establish plain error, Middlebrooks “must

point to an error that was not affirmatively waived,” and that “error

must have been clear and not open to reasonable dispute, must have

38
affected [her] substantial rights, and must have seriously affected

the fairness, integrity or public reputation of judicial proceedings.”

Ellington, 314 Ga. at 344 (3) (citation and punctuation omitted).

“For purposes of plain error review, an affirmative waiver is

the intentional relinquishment or abandonment of a known right.”

Griffin v. State, 309 Ga. 860, 865 (2) (849 SE2d 191) (2020) (citation

and punctuation omitted). The record shows that the defense

invoked known rights, then proposed a resolution to the parties’

evidentiary dispute that involved voluntarily curtailing

Middlebrooks’s assertion of those rights. The transcript of the

colloquy before Dr. Evans testified shows that defense counsel opted

to proceed with Dr. Evans’s testimony, with the latitude to question

him, without drawing an objection by the State, about the facts of

Middlebrooks’s hospitalizations with the sole limitation that he

could not elicit testimony that Dr. Evans had diagnosed

Middlebrooks with schizophrenia — an opinion that was reflected in

the medical records and referenced in the testimony of

Middlebrooks’s two expert witnesses. In addition, at the hearing on

39
Middlebrooks’s motion for a new trial, her trial counsel testified that

he had previous experience with “forcing an expert witness who did

not want to appear” as an expert to testify, that witness “made [him]

wish” he had not compelled the witness to testify, and he “didn’t

want to have that situation with Dr. Evans.” Thus, Middlebrooks

intentionally relinquished any claim that the trial court erred in

limiting the scope of Dr. Evans’s testimony, and this claim of error

fails at the first stage of plain-error review. See Washington v. State,

312 Ga. 495, 499 (1) (863 SE2d 109) (2021); Griffin, 309 Ga. at 864-

866 (2); see also State v. Herrera-Bustamante, 304 Ga. 259, 264 (2)

(b) (818 SE2d 552) (2018) (“We need not analyze all of the elements

of [the plain-error] test when, as in this case, the defendant has

failed to establish one of them.”).

(b) In a related claim of error, Middlebrooks contends that her

“trial counsel was ineffective in failing to object to the limitation of

Dr. Evan[s]’s testimony by the [f]ederal [g]overnment and the

[p]rosecutor.” Specifically, she criticizes her counsel’s conduct in

“ultimately consent[ing] to limiting his questioning of Dr. Evans.” In

40
addition, Middlebrooks avers that her “[t]rial counsel expressed

ignorance of the federal rule governing VA testimony,” and she

argues that, “[h]ad he consulted the regulation governing expert

testimony of VA witnesses, he would have seen the procedure that

needed to be followed by either himself or the [c]ourt.” In another

section of her brief, Middlebrooks avers that defense counsel did not

“request the Department of Veterans Affairs to allow Dr. Evans to

testify as an expert. This is even though the factors listed in [the

applicable federal regulation] would have likely been met.” She

contends that “the diagnosis of her mental illness was hampered by

the exclusion of her primary diagnosing physician” and that, as a

result, “[t]he accusation of recent fabrication was left hanging over

the trial.” Middlebrooks contends that “[t]he error of trial counsel

was so prejudicial that it most likely changed the outcome of the

trial.” To prevail on a claim of ineffective assistance of counsel, the

appellant “must show that his lawyer’s performance was

constitutionally deficient and that he suffered prejudice as a result.”

Clark v. State, 315 Ga. 423, 442 (5) (883 SE2d 317) (2023). See

41
Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984). If the appellant “fails to prove one element of this

test, we need not address the other element.” Mahdi v. State, 312

Ga. 466, 468 (2) (863 SE2d 133) (2021) (citation and punctuation

omitted).

First, Middlebrooks’s claims that her counsel failed to seek

permission from the VA to allow Dr. Evans to testify as an expert

and that he expressed ignorance at trial of the federal rule governing

VA testimony are belied by the record. The representative of the VA

informed the trial court that, in advance of the trial, Middlebrooks’s

counsel requested approval from the VA for Dr. Evans to testify and

that the VA authorized him to testify within boundaries the VA set.

The record shows at most that counsel was caught off guard by the

prosecutor’s initial, later-abandoned objection to Dr. Evans’s

testifying at all if he was not permitted to testify as to his

diagnoses.14

14 In objecting on the basis of relevancy to Dr. Evans being allowed to

testify that he had diagnosed Middlebrooks with schizophrenia in 2011 and

42
As to counsel’s agreement not to ask Dr. Evans about his

diagnoses, we consider the second prong of Strickland first. To show

prejudice, the appellant “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U. S. at 694 (III) (B). Although defense

counsel failed to object to the limitations placed on Dr. Evans’s

testimony, counsel presented two expert witnesses, who testified

about her diagnoses, the severity of her symptoms, and her mental

illness’s effect on her ability to distinguish right from wrong when

she killed Sky. Middlebrooks’s stated need for Dr. Evans’s testimony

was to show that the same mental illness manifested many months

before the crimes, with sufficiently severe symptoms to warrant

2012, the prosecutor argued that, “if he’s not [qualified as] an expert [at trial,]
he can’t testify as to a diagnosis [he made in the past], which is the only reason
[the defense is] calling him. . . . If he’s not an expert[,] his testimony is
meaningless.” Defense counsel responded that “[e]ven lay witnesses can testify
just based upon their observations.” The trial court asked both sides, “do y’all
have any case law that supports your position?” Defense counsel responded, “I
never heard of such an objection so I do not have case law.”
43
extended involuntary hospitalizations, to counteract the State’s

evidence that she was only feigning insanity after the homicide to

avoid criminal liability for Sky’s death. The record shows that

Middlebrooks was able to elicit such testimony from Dr. Evans, even

without asking him to give opinion testimony about his diagnoses,

and to connect her experts’ later diagnoses to Middlebrooks’s

preexisting history of mental illness.15 In addition, Dr. McKee, one

of Middlebrooks’s expert witnesses, testified extensively about the

records he reviewed of Middlebrooks’s 2011 and 2012

15 At the hearing on Middlebrooks’s motion for a new trial, her trial
counsel testified:
It was important for me to show this insanity plea was not
something that a lawyer made up at the last minute. I wanted to
get into her history. I wanted to show why she was in the hospital,
how long she was in the hospital, and what kind of treatment she
had in the hospital, and what that treatment was generally for.
That way I was able to satisfy the VA who did not want [Dr. Evans]
to testify as an expert. But I got in all I wanted by showing that he
has treated her and she had been diagnosed as psychotic[,] . . . and
she was so dangerous that she had to stay in the hospital for . . . a
number of weeks. . . . [Dr. Evans’s diagnosis] was not [a key to the
defense]. . . . I just wanted to get that she was admitted in the
hospital because she was schizophrenic, and I was able to get that
in. And she was confined because she was schizophrenic, and I was
able to get that in. And she was confined for a good period of time,
and I was able to get that in without a diagnosis from Dr. Evans.

44
hospitalizations, including her reported delusions and the diagnoses

by VA physicians, including Dr. Evans. Given that defense counsel

was able to elicit the desired evidence, Middlebrooks has not shown

a reasonable probability that, but for defense counsel’s allegedly

deficient performance with regard to accepting the limitations on

Dr. Evans’s testimony, the outcome of the trial would have been

different. Accordingly, this claim of error fails. See Hornbuckle v.

State, 300 Ga. 750, 758-759 (6) (c) (797 SE2d 113) (2017).16

Judgment affirmed. All the Justices concur.

16 Under Georgia law, where alleged errors by the trial court and
deficient performance by defense counsel involve evidentiary issues, courts
consider collectively the prejudicial effect of those errors in considering
whether a criminal defendant is entitled to a new trial. See State v. Lane, 308
Ga. 10, 14 (1) (838 SE2d 808) (2020). For purposes of a cumulative-error
analysis in this case, the assumed trial court evidentiary error is the admission
of Dr. Vitacco’s testimony about some of the consequences of a verdict of not
guilty by reason of insanity, which we have already determined to be harmless,
and the assumed deficient performance of counsel is failing to object to the
limitation of Dr. Evans’s testimony, which we have already determined did not
prejudice Middlebrooks. We have considered the cumulative effect of this
presumed evidentiary error and presumed deficient performance of counsel
together and conclude that their collective effect is not sufficiently harmful to
outweigh the strength of the properly admitted evidence of Middlebrooks’s
guilt so as to warrant a new trial. See Perkins v. State, 313 Ga. 885, 904 (5) (b)
n.22 (873 SE2d 185) (2022).
45
Decided February 21, 2023.

Murder. Richmond Superior Court. Before Judge Jolly.

Lucy D. Roth, Tiera M. Williams, Maigan Jenkins, for

appellant.

Jared T. Williams, District Attorney, Joshua B. Smith,

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

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

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

Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 21, 2023

S22A1328. MIDDLEBROOKS v. THE STATE.

ELLINGTON, Justice.

After Marina Middlebrooks pleaded not guilty by reason of

insanity to charges arising from the stabbing death of her daughter,

Sky Allen, a jury found Middlebrooks guilty of murder and cruelty

to children in the first degree.1 On appeal, Middlebrooks contends

1 The crimes occurred on May 2, 2013. On July 10, 2013, a Columbia
County grand jury returned an indictment charging Middlebrooks with malice
murder (Count 1), felony murder predicated on aggravated assault (Count 2),
and cruelty to children in the first degree (Count 3). On January 26, 2016,
Middlebrooks was re-indicted on the same counts in Richmond County.
Following a February 2016 trial, a Richmond County jury found Middlebrooks
guilty on all three counts. On February 29, 2016, the trial court sentenced
Middlebrooks to serve life in prison without parole on Count 1 and to serve 20
years in prison on Count 3. The judgment indicated that Count 2 merged with
Count 1, although it was actually vacated by operation of law. See Bradley v.
State, 305 Ga. 857, 857 n.1 (828 SE2d 322) (2019). Middlebrooks filed a timely
motion for a new trial, which, through new counsel, she amended on May 27
and October 5, 2020. Following a hearing on November 24, 2020, the trial court
denied Middlebrooks’s motion for a new trial on August 19, 2021. Middlebrooks
filed a timely notice of appeal, and the case was docketed in this Court for the
August 2022 term and orally argued on November 8, 2022.
that the trial court erred in allowing the State’s expert witness to

testify as to what happens when a person is found not guilty by

reason of insanity. In addition, Middlebrooks contends that “[t]he

trial court erred in restricting the testimony of [her] diagnosing

psychiatrist,” an employee of the Department of Veterans’ Affairs

(“VA”), “without following the correct procedure” under federal

regulations concerning the testimony of VA personnel in legal

proceedings. In a related claim, Middlebrooks contends that her

“trial counsel was ineffective in failing to object to the limitation of

[the witness’s] testimony by the [f]ederal [g]overnment and the

[p]rosecutor.” For the reasons explained below, we affirm.

After indictment in Columbia County, where Sky’s dead body

was discovered, the case was transferred to and re-indicted in

Richmond County, based on Middlebrooks’s pretrial statements that

placed the alleged criminal acts outside her Richmond County home.

Middlebrooks filed a notice of intent to raise the issue that she was

insane at the time of the acts charged against her. Before the trial

began, the State and Middlebrooks entered into a stipulation that,

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“[o]n May the 2nd, 2013, the Defendant, Marina Mae Middlebrooks,

acting alone, caused the death of Sky Lyric Allen, by stabbing her in

the neck. This act occurred in Richmond County, Georgia.” Because

the parties stipulated that Middlebrooks killed her daughter, the

primary issue the jury had to decide was Middlebrooks’s mental

capacity at the time she committed the crimes, with the possible

verdicts being not guilty, not guilty by reason of insanity, guilty but

mentally ill, or guilty. 2 The jury was required to return a verdict of

not guilty by reason of insanity if the jury found beyond a reasonable

doubt that Middlebrooks committed the crimes charged in the

2 OCGA § 17-7-131 (b) (1) provides:
In all cases in which the defense of insanity, mental illness,
or intellectual disability is interposed, the jury, or the court if tried
by it, shall find whether the defendant is:
(A) Guilty;
(B) Not guilty;
(C) Not guilty by reason of insanity at the time of the crime;
(D) Guilty but mentally ill at the time of the crime, but the
finding of guilty but mentally ill shall be made only in felony cases;
or
(E) Guilty but with intellectual disability, but the finding of
intellectual disability shall be made only in felony cases.
At the time of Middlebrooks’s trial, the fifth verdict option was “guilty but
mentally retarded.” Since July 1, 2017, the fifth option has been “guilty but
with intellectual disability.” See Ga. L. 2017, p. 471, § 3.

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indictment and also found by a preponderance of the evidence that

she was legally insane at that time, that is, she did not have the

mental capacity to distinguish between right and wrong in relation

to the act.3 At the beginning of trial, the trial court read the parties’

3 See OCGA §§ 16-3-2 (“A person shall not be found guilty of a crime if,
at the time of the act, omission, or negligence constituting the crime, that
person did not have the mental capacity to distinguish between right and
wrong in relation to the act.”); 17-7-131 (a) (“For purposes of this Code section,
the term . . . ‘[i]nsane at the time of the crime’ means meeting the criteria of
Code Section 16-3-2 or 16-3-3. However, the term shall not include a mental
state manifested only by repeated unlawful or antisocial conduct.”); 17-7-131
(c) (1) (“The defendant may be found ‘not guilty by reason of insanity at the
time of the crime’ if he or she meets the criteria of Code Section 16-3-2 or 16-3-
3 at the time of the commission of the crime. If the court or jury should make
such finding, it shall so specify in its verdict.”); Bowman v. State, 306 Ga. 97,
100 (1) (c) (829 SE2d 139) (2019) (“In Georgia, a defendant is presumed to be
sane and a defendant asserting an insanity defense has the burden to prove by
a preponderance of the evidence that he was insane at the time the crime was
committed.” (citation omitted)).
We note that Middlebrooks’s counsel did not seek a jury instruction
based on the other Code section referenced in OCGA § 17-7-131 (c) (1), OCGA
§ 16-3-3, which provides: “A person shall not be found guilty of a crime when,
at the time of the act, omission, or negligence constituting the crime, the
person, because of mental disease, injury, or congenital deficiency, acted as he
did because of a delusional compulsion as to such act which overmastered his
will to resist committing the crime.” At the charge conference, defense counsel
stated, “[w]e are not claiming a justification delusion defense, [although] we do
have a compulsive delusion[,]” because there was no “proof of justification.” See
Buford v. State, 300 Ga. 121, 125 (1) (b) (793 SE2d 91) (2016) (“When a
delusional compulsion is the basis of an insanity defense, the delusion must be
one that, if it had been true, would have justified the defendant’s actions.”
(citation omitted)); id. (holding that, because the defendant “could not
articulate the particulars of any delusion from which he was suffering that
would have justified his actions,” he could not “establish insanity pursuant to
OCGA § 16-3-3”).
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stipulation to the jury and instructed the jury that, based on the

stipulations that had been entered into, Middlebrooks’s “plea of not