FORT, WARDEN v. VEGA

In the
Supreme Court of Georgia
No. S26A1000
Karl Fort, Warden
v.
Feliz Vega
On Appeal from the Superior Court of Washington County
No. SUCV2021000196
Decided: October 14, 2026
PETERSON, Chief Justice.
At his trial on four counts of armed robbery and one count
of fleeing and attempting to elude a law enforcement officer, Feliz
Vega raised an involuntary intoxication defense, and the parties
presented 	competing 	experts 	on 	the 	issue. 	That 	defense 	is
available 	only 	when 	involuntary 	intoxication 	renders 	the
defendant unable to distinguish between right and wrong in
relation to the criminal act. See Williams v. State, 323 Ga. 354,
358–59 (2026). The jury rejected Vega’s defense and found him
guilty of all the crimes charged, and the Court of Appeals affirmed
Vega’s convictions on appeal. Vega later filed a habeas corpus
petition asserting that his trial counsel and appellate counsel
were constitutionally ineffective. The habeas court granted Vega’s
habeas petition, concluding that trial counsel was ineffective in
various ways related to the testimony of expert witnesses and
that appellate counsel was ineffective for failing to raise these
claims on appeal. Warden Karl Fort now appeals from the grant
of habeas relief. As discussed in more detail below, we reverse the
habeas court’s order in part, because that court erred as to each
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.

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ground 	on 	which 	it 	granted 	relief. 	Because 	there 	are 	some
unresolved claims that need to be addressed in the first instance
by the habeas court, we remand for that court to consider those
claims.
1. 	The underlying proceedings
(a) The trial
Vega does not dispute that he robbed a bank with a
paintball gun in July 2010. Vega’s defense at trial was based on
involuntary intoxication: that the anti-depressant medication he
took 	caused 	him 	to 	experience 	a 	manic 	episode 	when 	he
committed the robbery.
The evidence at Vega’s September 2012 trial showed the
following. In 2001, Vega was diagnosed with, among other things,
anxiety and depression and was prescribed selective serotonin
reuptake inhibitors (“SSRIs”) — specifically, Zoloft and Prozac.
About 	one 	month 	before 	the 	robbery, 	Vega 	had 	been
prescribed Paxil (another SSRI) for the first time and reported
taking it as prescribed. He experienced some side effects after
taking Paxil, including racing thoughts, increased goal-directed
thoughts, and increased confidence or grandiosity. Vega’s ex-
girlfriend testified that in the month leading up to the robbery,
Vega reported having side effects from his medication and that he
became more combative and aggressive. She also said that Vega
started drinking alcohol more. The ex-girlfriend testified at trial
that at the time of the robbery, Vega was unemployed and they
would argue about finances. She also testified that a couple days
after he was arrested, Vega told her he was “crazy” and “looking
for fast money.”
Vega drank alcohol right before the robbery and had a

3
bottle 	of 	alcohol 	in 	his 	getaway 	car. 	During 	the 	robbery,
eyewitnesses described Vega as calm, not aggressive, and that he
looked like he knew what he was doing. He repeatedly told the
bank employees not to worry because their money was “federally
insured.” During the robbery, Vega wore gloves, a hat, and a scarf
to cover his face, but the scarf kept slipping off his nose. After
Vega left the bank, he led law enforcement on a high-speed chase
that ended when Vega crashed and was apprehended by police.
While being booked into jail, Vega told a deputy that he robbed
the bank because he forgot to take his medication.
At trial, the defense tendered Dr. Thomas Sachy as a
medical expert in forensic psychiatry and neurology. Dr. Sachy
testified that about one year after the robbery, he performed a
psychiatric evaluation of Vega, conducted functional tests on
Vega, and took an MRI of Vega’s brain to look for structural
abnormalities. Dr. Sachy also referred Vega to Dr. Robert Shaffer
for 	a 	neuropsychological 	exam. 	Dr. 	Sachy 	testified that 	the
functional tests he performed on Vega indicated that Vega had a
frontal lobe dysfunction and that the MRI indicated that he had
a frontal lobe abnormality that diminished executive function. Dr.
Sachy also testified that people with frontal lobe abnormalities
like Vega’s “are more prone to have mania.” Dr. Sachy described
mania as being on a “spectrum,” and explained that, generally,
someone in a manic state has trouble doing things rationally,
talks faster, and talks and thinks about many things at once,
including about completing grandiose tasks. Dr. Sachy explained
that SSRIs can cause mania and that Paxil is a “more potent”
SSRI that is more likely than other SSRIs to cause mania. Dr.
Sachy also testified that, although plenty of reputable doctors
would characterize Vega’s MRI as normal, Dr. Sachy’s functional
testing along with Dr. Shaffer’s neuropsychological exam showed
that Vega had a frontal lobe abnormality. Based on Vega’s

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behavior in the years preceding the robbery, including periods
during which he was taking Zoloft and Prozac, 1 Dr. Sachy also
opined that at the time of the robbery, Vega was unable to
distinguish between right and wrong as a result of Paxil-induced
mania. 	Vega reported to Dr. Sachy that he had repeatedly
watched Heat, a movie featuring a bank robbery, and felt like he
was acting out the movie during the armed robbery.
On 	cross-examination, 	the 	prosecutor 	questioned 	Dr.
Sachy extensively about his methodology and opinion in this case.
The prosecutor also elicited testimony that Dr. Sachy became
involved in Vega’s case because he had worked with Vega’s
previous attorney in the unrelated murder case of Reinaldo
Rivera. At one point, the prosecutor asked Dr. Sachy, “Do you
know where Mr. Rivera is now?” Dr. Sachy responded, “He’s on
death row.” Trial counsel then objected on relevance grounds, and
the trial court instructed the prosecutor to “[m]ove on.” The
prosecutor then asked one more question about Rivera before
moving 	on 	and 	ending 	his 	cross-examination. 2 	On 	redirect
examination, 	Dr. 	Sachy 	testified 	that 	Vega 	could 	still 	have
experienced mania from his medication even if he missed a day’s
dosage before the robbery.
Dr. 	Shaffer, 	an 	expert 	in 	forensic 	psychology 	and
neuropsychology, also testified for the defense. Dr. Shaffer’s
testimony was consistent with Dr. Sachy’s, although the basis of
1 Vega had a history of alcohol and marijuana use, and overdosed on
Zoloft while drinking alcohol, which led to his hospitalization. In 2002, he also
broke into dorm rooms on an Air Force base where he was stationed and
handcuffed his girlfriend against her wishes.
2 The question the prosecutor asked about Rivera related to whether
he had a PET scan.

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Dr. 	Shaffer’s 	opinion 	was 	different, 	because 	Dr. 	Sachy 	was
trained as a psychiatrist, while Dr. Shaffer was a psychologist.
Dr. Shaffer testified that pursuant to Dr. Sachy’s referral, he
performed 	a 	neuropsychological 	evaluation 	of 	Vega, 	which
included 	a 	brief 	clinical 	interview 	and 	a 	number 	of
neuropsychological 	tests. 	Based 	on 	that testing, 	Dr. 	Shaffer
concluded that Vega had a frontal lobe dysfunction consistent
with Vega’s history of difficulty with impulse control. Dr. Shaffer
testified that Vega had experienced “a substance induced manic
episode that led up to the events causing his arrest,” which was
confirmed by “past documented episodes.” Dr. Shaffer also opined
that, at the time of the robbery, Vega did not have sufficient
mental capacity to distinguish between right and wrong. On
cross-examination, Dr. Shaffer opined that it was more likely that
Vega could have had an abnormal response to his medication,
such as mania, due to his frontal lobe dysfunction.
In rebuttal, Dr. Hess, an expert in neurology, testified for
the State. Dr. Hess testified about the conclusions drawn by Dr.
Sachy about Vega’s MRI, specifically opining that Dr. Sachy’s
“MRI 	conclusions 	are 	completely 	erroneous.” 	Dr. 	Hess 	also
disagreed with Dr. Sachy’s conclusion that one of the functional
tests that Dr. Sachy had Vega perform indicated that Vega had a
frontal lobe dysfunction. And Dr. Hess testified that Vega’s MRI
did not reveal any structural abnormalities in his brain. Dr. Hess
also testified that Dr. Sachy’s testimony in the Rivera case was
erroneous because the MRI in that case was “misinterpreted
totally,” prompting a relevance objection.
Dr. Valerie Ross, an expert in psychology, also testified in
rebuttal for the State. Dr. Ross conducted a mental evaluation on
Vega in March 2011, reviewing his medical records and criminal
history and interviewing Vega but not testing him. Dr. Ross

6
testified 	that 	although 	Vega 	was 	experiencing 	symptoms
consistent with a manic episode during the robbery, she believed
he was able to distinguish between right and wrong. She formed
her opinion based on his behavior at the time of the robbery —
including Vega’s attempt to disguise himself and flee — which
suggested that Vega knew his behavior was wrong. Dr. Ross also
testified that her review of the medical records did not indicate
antisocial behavior during the year-long period Vega had taken
Prozac prior to the robbery and that she would have expected
mania to manifest itself during that period if Vega was prone to
manic episodes caused by consumption of SSRIs.
At the end of the trial, the jury found Vega guilty on
four counts of armed robbery and one count of fleeing and
attempting to elude a law enforcement officer. Vega filed a motion
for new trial, but did not raise any claims that trial counsel was
ineffective. After the trial court denied Vega’s motion for new
trial, he appealed to the Court of Appeals, which affirmed his
convictions in 2018.
(b) 	Habeas proceedings
In 2017, Vega filed a habeas petition, raising multiple
claims of ineffective assistance of trial and appellate counsel.
Vega argued that trial counsel was constitutionally ineffective for
failing 	to 	secure 	a ruling 	on 	his 	relevance 	objection 	to 	the
prosecutor’s questions to Dr. Sachy about the outcome of the
Rivera case; failing to object under the reciprocal discovery
statute to Dr. Hess’s testimony about Dr. Sachy’s opinion in the
Rivera case; failing to object to Dr. Hess’s testimony about Dr.
Sachy’s opinion in the Rivera case as improper impeachment and
improper 	bolstering; 	and 	failing 	to 	counsel 	Vega 	properly
regarding the plea offer he received and rejected. Vega also
argued that appellate counsel was constitutionally ineffective for

7
failing to raise claims that trial counsel was ineffective on appeal.
At 	a 	hearing 	on 	Vega’s 	habeas 	petition, trial counsel
testified that Dr. Sachy was the defense’s “primary expert” and
was “crucial” to Vega’s defense. Trial counsel testified that he
objected on relevance grounds to the prosecutor’s question that
elicited Dr. Sachy’s answer that the defendant in the Rivera case
was on “death row,” because he did not find Dr. Sachy’s testimony
in that case to be relevant and did not want the jury hearing that
another 	jury 	rejected 	Dr. 	Sachy’s 	testimony. 	Although 	trial
counsel 	testified 	that 	the 	testimony 	“was 	irrelevant 	and 	…
prejudicial,” he also stated that there was no reason why he did
not secure a ruling on his relevance objection. Trial counsel
further testified that he did not know the effect of not obtaining a
ruling on an evidentiary objection under the former Evidence
Code.
Regarding Dr. Hess’s trial testimony, trial counsel testified
that when he was told Dr. Hess was testifying as an expert to
rebut Dr. Sachy’s conclusions in this case, he was merely given a
copy of Dr. Hess’s academic and professional history and was not
given any of the underlying materials supporting Dr. Hess’s
opinions about the Rivera case. Trial counsel spoke with Dr. Hess
outside of the presence of the jury before he testified, and Dr. Hess
expressed that “he did not like [Dr.] Sachy very much” and
“thought he was a liar.” Trial counsel testified that he objected on
relevance grounds to the reference to Rivera being on death row
because Dr. Hess “is a well-respected physician in Augusta,” Dr.
Sachy is “viewed as an outsider,” and the Rivera case was a big
case in Augusta. Trial counsel also testified that he did not think
to make an objection to Dr. Hess’s testimony under the reciprocal
discovery 	statute, 	but 	stated 	that 	he 	might 	have 	made 	an
objection if he had more time. Trial counsel stated that Dr. Hess’s

8
statements were “extremely impactful.”
Trial counsel also testified about juror questionnaires (not
tendered as evidence at the habeas hearing) that he sent to the
jurors after the trial. Trial counsel testified that five or six juror
questionnaires 	were 	returned, 	at 	least 	two 	stated 	that 	the
credibility of Dr. Sachy was the “primary reason” for their verdict,
and one of them noted Dr. Sachy’s lack of credibility. Trial counsel
stated 	that 	Dr. 	Hess’s 	testimony 	criticizing 	Dr. 	Sachy’s
evaluations 	“really 	impacted 	our 	chances 	of 	winning,” 	and
referred to one juror questionnaire that stated that Dr. Hess’s
testimony was “a turning point” in the trial.
Appellate counsel testified at the habeas hearing that in
deciding what claims to raise on appeal, including at the motion
for new trial stage, she would review the record and pursue only
the strongest claims, noting that she would raise ineffectiveness
claims only if she believed she could satisfy the prejudice prong.
Appellate counsel also stated that although she thought that
cumulative error was not available for ineffective assistance
claims at the time of Vega’s appeal, 3 she did not think her
analysis of which issues to raise on appeal would have been any
different had it been available. Appellate counsel also testified
that she knew that one of trial counsel’s trial strategies is “not to
object a lot” to avoid highlighting evidence, and that a reasonable
attorney could have decided not to object too vehemently to Dr.
Hess’s testimony about Dr. Sachy’s opinion in the Rivera case in
order to avoid highlighting it. On cross-examination, appellate
3 Appellate counsel mistakenly believed that cumulative prejudice did
not apply to ineffectiveness claims prior to this Court’s decision in State v.
Lane, 308 Ga. 10 (2020), but that case made clear that cumulative prejudice
applied to such claims at the time of Vega’s appeal, see id. at 15–16 (citing
Schofield v. Holsey, 281 Ga. 809, 811 n.1 (2007)).

9
counsel testified that she did not raise an ineffective assistance
claim for trial counsel’s failure to secure a ruling on the relevance
objection during Dr. Sachy’s testimony on cross-examination
because she did not think it would be successful. And appellate
counsel testified that she did not think Dr. Hess’s testimony was
subject to reciprocal discovery or that there was an indication that
exculpatory information under Brady 4 was contained in the
expert 	materials. 	Appellate 	counsel 	testified 	on 	redirect
examination that her decision of which issues to raise on appeal
was based on her understanding of the applicable law at the time.
At a second habeas hearing, the parties stipulated, among
other things, that (1) trial counsel knew the identity of Dr. Hess
and that Dr. Hess would be testifying in Vega’s trial; (2) Dr.
Sachy’s report in the Rivera case was not in the State’s file, there
was no record in the State’s file that the State provided Dr.
Sachy’s report from the Rivera case to Dr. Hess during Vega’s
prosecution, 	and 	the 	prosecutor 	did 	not 	recall 	whether 	any
prosecutor had done so; and (3) Dr. Hess’s report in Vega’s trial
was provided to trial counsel prior to trial. Additionally, the
parties agreed that there was no reference to the Rivera case in
Dr. Hess’s report in Vega’s case. The Warden argued at the
hearing that Dr. Hess’s testimony about the Rivera case “was
simply spontaneous.”
In its order granting Vega’s habeas petition, the habeas
court found that trial counsel was deficient for: (1) failing to
obtain a ruling on his relevance objection to Dr. Sachy’s testimony
about his work on the Rivera case; (2) failing to object to the
State’s missing discovery regarding Dr. Hess’s testimony about
the Rivera case; and (3) failing to object to Dr. Hess’s testimony
4 Brady v. Maryland, 373 US 83 (1963).

10
about the credibility of Dr. Sachy. In assessing prejudice, the
habeas 	court 	specifically 	addressed 	prejudice 	from 	only 	one
individual deficiency and otherwise considered the cumulative
prejudice in granting relief. 5 The habeas court also found that
appellate counsel was deficient because of her misunderstanding
that prejudice from ineffectiveness claims could not be aggregated
and that her failure to raise the ineffectiveness claims prejudiced
Vega.
2. 	Analysis
The Warden challenges the habeas court’s determination
that appellate counsel was ineffective for failing to raise on direct
appeal that trial counsel was ineffective on several grounds. We
agree with the Warden that the habeas court erred.
“In reviewing the grant or denial of a petition for habeas
corpus, this Court accepts the habeas court’s factual findings and
credibility determinations unless they are clearly erroneous, but
we independently apply the law to the facts.” Dozier v. Watson,
305 Ga. 629, 629–30 (2019). A petitioner seeking habeas relief
bears the burden of establishing that his constitutional rights
were violated. See Ward v. Medina, 316 Ga. 345, 349 (2023).
Under 	the 	familiar 	Strickland 6 	test, 	to 	establish 	the
ineffectiveness of counsel, Vega must demonstrate both that
counsel 	rendered 	deficient 	performance 	and 	that 	prejudice
resulted from that deficient performance. See Gramiak v. Beasley,
304 	Ga. 	512, 	513 	(2018). 	As 	that 	standard 	applies 	in 	the
particular context of claims of ineffective assistance of appellate
5 Given these holdings, the habeas court did not reach Vega’s claim
that trial counsel was ineffective for failing to properly counsel him regarding
the plea offer he received and rejected because that claim was moot.
6 Strickland v. Washington, 466 US 668 (1984).

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counsel, Vega bears the burden of showing that appellate counsel
was deficient in failing to raise an issue on appeal and that there
is a reasonable probability that the outcome of the appeal would
have been different had counsel raised the issue. See Emmons v.
Bryant, 312 Ga. 711, 717 (2021); Rozier v. Caldwell, 300 Ga. 30,
31 (2016). Because Vega’s claims that appellate counsel was
ineffective are based on the failure to raise on direct appeal claims
that trial counsel was ineffective, two layers of fact and law are
involved in the analysis. If Vega fails to show that his trial counsel
was 	ineffective, 	then 	he 	necessarily 	cannot 	establish 	that
appellate counsel was ineffective, because an attorney is not
deficient for failing to raise a meritless issue on appeal. See
Gramiak, 304 Ga. at 513–14.
Because Vega’s claims depend on whether trial counsel was
ineffective, we first analyze whether Vega has demonstrated that
his trial counsel was ineffective. In doing so, we conclude that
trial counsel was not deficient for failing to secure a ruling on his
relevancy objection to Dr. Sachy’s testimony or for failing to object
to Dr. Hess’s testimony based on purported discovery violations
and on bolstering grounds. And because the habeas court did not
decide whether trial counsel was ineffective for failing to object to
Dr. 	Hess’s 	testimony 	based 	on 	improper 	impeachment, 	we
remand to the habeas court for it to decide that claim.
(a) Trial counsel was not deficient for failing to secure a
ruling 	on 	his 	relevancy 	objection 	to 	Dr. 	Sachy’s
testimony about whether the jury accepted his theory in
the Rivera case.
Prior to the testimony in dispute, the prosecutor cross-
examined 	Dr. Sachy extensively about his 	methodology and
opinion in this case. Towards the end of that cross-examination,
the prosecutor asked Dr. Sachy how he got involved in Vega’s

12
case. When Dr. Sachy referred to his involvement in the Rivera
case, the prosecutor asked Dr. Sachy about the opinions he
rendered in that case. The prosecutor then asked, “Do you know
where Mr. Rivera is now?,” and Dr. Sachy responded, “He’s on
death row.” Trial counsel objected on relevance grounds, and the
court instructed counsel to “[m]ove on.” Although the prosecutor
asked one more question seemingly comparing Vega’s case to the
Rivera case, the prosecutor’s remaining questions, which were
few, concerned Dr. Sachy’s methodology and practice.
Here, Vega points to authority holding that whether other
juries had followed an expert’s recommendations in another case
is generally not relevant. See Carter v. State, 257 Ga. 510, 511–
12 (1987). 7 Trial counsel recognized that the question about the
results of the Rivera case was not relevant, as he lodged an
appropriate objection. The question here is whether counsel was
deficient for not doing more when the court told the prosecutor to
“move on” after the challenged testimony. Given the context of the
questioning, trial counsel was not deficient for failing to secure a
definitive ruling or to succeed in striking the evidence.
Vega points to trial counsel’s testimony at the habeas
hearing as evidence that trial counsel should have done more. 8
But 	counsel’s 	own 	subjective, 	post-hoc 	assessment 	of 	his
performance is not controlling. Chavez v. State, 307 Ga. 804, 811
(2020). “If a reasonable lawyer might have done what the actual
7 The old Evidence Code applied to Vega’s trial because it occurred
prior to the January 1, 2013, effective date of the current Evidence Code. The
old Evidence Code required evidence to “relate to the questions being tried by
the jury and bear upon them either directly or indirectly.” See former OCGA §
24-2-1; Goodman v. State, 293 Ga. 80, 84 (2013) (evidence was relevant if it
bore on a material issue in the case).
8 Trial counsel testified that he had no reason not to secure such a
ruling, but he did not discuss why he did not move to strike the evidence.

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lawyer did — whether for the same reasons given by the actual
lawyer or different reasons entirely — the actual lawyer cannot
be said to have performed in an objectively unreasonable way.”
Lane v. State, 312 Ga. 619, 624 (2021). It is often reasonable for
an attorney to refrain from taking action that would highlight
objectionable statements. See, e.g., Walker v. State, 308 Ga. 33,
39 (2020) (trial counsel’s decision to forgo objections to several
statements by witness so as not to give them “validity” or draw
“attention” or “focus” to such statements was reasonable trial
strategy); Holmes v. State, 273 Ga. 644, 648 (2001) (trial counsel
was not deficient for failing to object to the prosecutor’s closing
argument because “an objection may simply have highlighted the
point being made by the prosecution” (quotation marks omitted)).
And a reasonable attorney could have made that choice here.
Here, the cross-examination of Dr. Sachy regarding the
expert testimony offered in the Rivera case was limited. It
spanned one page out of almost 45 pages of cross-examination in
which the prosecutor otherwise challenged Dr. Sachy’s opinion in
this case. And by the time the allegedly irrelevant evidence of the
Rivera jury’s conclusion was introduced, the jury had already
heard several important factors that distinguished Vega’s case
from Rivera’s. Specifically, the jury here heard that the Rivera
case involved the murder of multiple women. And although the
prosecutor attempted to show a similarity between Dr. Sachy’s
opinion testimony in this case and his testimony in the Rivera
case, Dr. Sachy explicitly refuted that comparison, saying that
Vega’s situation involved substance-induced mania, while Rivera
was a “psychopath.” Under these circumstances, a reasonable
attorney could have believed that the trial court’s instruction to
“move on” was enough to show the jury that the evidence about
the 	outcome 	of 	the 	Rivera 	case 	was 	not 	relevant 	to 	their
deliberations in Vega’s trial and, more importantly, that taking

14
more corrective action could have only highlighted this evidence
to Vega’s detriment. Therefore, because Vega has failed to show
that no reasonable attorney would have declined to press for a
definite ruling on the testimony and moved to strike it, the habeas
court erred in granting relief on this ground.
(b) Trial counsel was not deficient for failing to make
objections to Dr. Hess’s testimony.
Trial counsel testified at the habeas hearing that he was
told that Dr. Hess would be called as a witness to rebut Dr.
Sachy’s testimony, but was given only a copy of Dr. Hess’s
academic resume in advance of his testimony. Trial counsel asked
for permission to talk to Dr. Hess before he testified, and he was
given that opportunity. Trial counsel said that Dr. Hess indicated
during their conversation that “he did not like Dr. Sachy” and
“thought [Dr. Sachy] was a liar”; trial counsel believed “that
wasn’t 	going 	to 	really 	be 	important” 	since 	he 	wanted 	to
understand what Dr. Hess was going to say about Dr. Sachy’s
conclusions.
During Dr. Hess’s testimony at Vega’s trial, he criticized
Dr. Sachy’s conclusions and opined that Vega’s MRI revealed no
brain abnormalities. When asked why he volunteered to testify as
a rebuttal witness, Dr. Hess referred to the Rivera case, stating
that Dr. Sachy’s opinion in the Rivera case was “erroneous” and
that “[t]here was imaging data that was used and misinterpreted
totally, if not fabricated. And I feel that what he does is a
disservice to the public.” Dr. Hess clarified that he was offering
his opinion of Dr. Sachy’s work, stating:
It’s my opinion that the testimony — when Dr.
Sachy moves into imaging he’s clearly wrong. And
when 	I 	saw 	that 	he 	was 	calling 	this 	MRI

15
leukoariosis, that’s just flatly wrong. Stating it’s a
structural 	abnormality 	where 	without 	abnormal
MRI is just flatly wrong. And … that was the other
thing. I think his testimony in other areas — he’s a
psychiatrist. But I think he goes out of his area here
and makes these leaps and they’re, frankly, wrong
when he gets to interpreting MRIs.
Vega argues that trial counsel was ineffective in dealing with Dr.
Hess’s testimony on two grounds — failing to make a discovery
violation objection and failing to make an improper bolstering
objection. Neither claim has merit.
i. 	Trial counsel was not deficient for failing to object to
Dr. Hess’s testimony based on a purported discovery
violation.
At the habeas hearing, trial counsel testified that he did
not question Dr. Hess about the Rivera case at Vega’s trial
because he was not familiar with that case and expected Dr.
Hess’s testimony to be limited to Dr. Sachy’s opinion about Vega.
Although trial counsel objected to portions of Dr. Hess’s testimony
on relevance grounds, which the trial court overruled, he did not
object on grounds that he should have been provided discovery
material. Trial counsel explained at the habeas hearing that he
should have been given all of the underlying materials supporting
Dr. Hess’s opinions, as well as any scientific testing completed
before 	trial. 	The 	habeas 	court 	agreed 	with 	trial 	counsel’s
assessment and concluded that had trial counsel objected to not
having received “any of the underlying information or reports
from the Rivera case,” that objection would have been sustained,
in so far as trial counsel would have been given time to review
and respond to that evidence.

16
The habeas court did not clearly identify what “underlying
information or reports from the Rivera case” were due to be
disclosed. Vega did not complain about not having Dr. Sachy’s
report in the Rivera case. Instead, Vega’s habeas petition and
briefing on appeal make clear that he believes a report from Dr.
Hess should have been disclosed. In his habeas petition, Vega
alleged that “[w]hen Dr. Hess opined that Dr. Sachy’s conclusions
in the former prosecution were incorrect, he did so on the basis of
mental evaluations and scientific tests that he performed for that
case.” In his brief on appeal, Vega also asserts that “[f]or Hess to
have remarked on Sachy’s opinion in Rivera, Hess would need to
have formed his own opinion about at least Rivera’s MRI’s to
contrast with Sachy’s … [a]nd it is Hess’s report and the bases
therefore that trial counsel would have needed.” But as discussed
below, there is no evidence that Dr. Hess performed any tests or
evaluations, so the habeas court’s conclusion that trial counsel
was deficient was wrong.
Under OCGA § 17-16-4(a)(4), a prosecuting attorney, no
later than ten days prior to trial or as otherwise ordered by the
court, is required to allow the defendant:
to inspect and copy or photograph a report of any
physical or mental examinations and of scientific
tests or experiments, including a summary of the
basis for the expert opinion rendered in the report,
or copies thereof, if the state intends to introduce in
evidence in its case-in-chief or in rebuttal the results
of the physical or mental examination or scientific
test or experiment. If the report is oral or partially
oral, 	the 	prosecuting 	attorney 	shall 	reduce 	all
relevant and material oral portions of such report to
writing and shall serve opposing counsel with such

17
portions no later than ten days prior to trial.
Vega’s claim fails because the record does not show that Dr.
Hess performed any tests or evaluations in the Rivera case. And
there is no evidence that Dr. Hess prepared any report in advance
of his testimony in Vega’s case. Vega stipulated that Dr. Sachy’s
report in the Rivera case was not in the State’s file and that there
was no evidence that the State provided Dr. Sachy’s report from
the Rivera case to Dr. Hess during Vega’s prosecution. 9 Thus, the
record does not show a violation of OCGA § 17-16-4(a)(4). See
Williams v. State, 302 Ga. 474, 479 (2017) (“Appellant has pointed
to nothing in the record to prove that the expert ever made such
an oral report before he testified. In the absence of such a
showing, Appellant cannot establish a violation of OCGA § 17-16-
4(a)(4).” (cleaned up)); Heywood v. State, 292 Ga. 771, 776–77
(2013) (because the record did not show that the expert produced
a written or oral report on his opinion before trial, appellant could
not establish a violation of OCGA § 17-16-4(a)(4)). Because Vega
has failed to establish a violation of OCGA § 17-16-4(a)(4), trial
counsel was not deficient for failing to object to Dr. Hess’s
testimony on this basis. 10 Accordingly, the habeas court erred in
9 At the habeas hearing, trial counsel was asked if Dr. Hess appeared
to have in his possession any evaluations from the Rivera case when he
testified at Vega’s trial. Trial counsel said he did not know and that he did not
remember Dr. Hess referring to any documentation during his testimony.
Although Dr. Hess’s trial testimony suggests that he reviewed Dr. Sachy’s MRI
evaluation of Rivera, and those results were alluded to at Vega’s trial, Vega
has waived any claim that the failure to disclose Dr. Sachy’s MRI evaluation
constituted a discovery violation because he did not argue this below. See
Humphrey v. Walker, 294 Ga. 855, 871 n.11 (2014).
10 Because of this conclusion, we need not address the prejudice prong
of the ineffectiveness claim. But we note that the habeas court’s conclusion that

18
granting relief on this ground.
ii. 	Even if trial counsel was deficient in failing to object to
Dr. Hess’s testimony that Dr. Sachy “fabricated” MRI
results, there is no reasonable probability the result of
the trial would have been different had counsel objected.
The 	habeas 	court 	found 	that 	Dr. 	Hess’s 	testimony
discrediting the conclusions Dr. Sachy drew about Vega’s frontal
lobe abnormalities improperly attacked Dr. Sachy’s credibility as
an expert and questioned the integrity of his work, and that trial
counsel was deficient for failing to object because the credibility
of a witness is solely within the jury’s province. Vega framed the
issue as “improper bolstering,” and the habeas court cited cases
relying on former OCGA § 24-9-80 (“The credibility of a witness is
a matter to be determined by the jury under proper instructions
from the court.”). 11
In interpreting that statute, we have stated that the
“[c]redibility of a witness is not beyond the ken of the jurors but,
to the contrary, is a matter solely within the province of the jury.”
Bly v. State, 283 Ga. 453, 459 (2008) (cleaned up). Applying this
principle, we have concluded that although a witness may not
generally testify as to whether another witness is lying, such
testimony may be proper where it used to emphasize conflicts in
the evidence. See Manzano v. State, 282 Ga. 557, 560 (2007),
trial counsel would have been given more time to review and respond to
discovery material was not itself a finding that there was a reasonable
probability of a different result at trial based on the alleged deficiency.
11 Former OCGA § 24-9-80 was carried forward to the current Evidence
Code with only minor revisions under OCGA § 24-6-620. See Sawyer v. State,
308 Ga. 375, 382 n.3 (2020). There is no comparable Federal Rule of Evidence.
Id.

19
disapproved in part by on other grounds by McIver v. State, 314
Ga. 109, 135 & n.48 (2022). See also Jones v. State, 299 Ga. 40,
43–44 (2016) (improper bolstering can occur when a testifying
witness is asked whether another witness is lying). And we
consider 	the 	challenged 	testimony 	in 	context 	to 	determine
whether any such testimony is improper. See Marshall v. State,
276 Ga. 854, 856 (2003).
Notwithstanding the general principle underlying former
OCGA § 24-9-80, other principles governing expert testimony also
applied at the time of Vega’s trial. “Expert opinion testimony on
issues to be decided by the jury, even the ultimate issue, is
admissible where the conclusion of the expert is one which jurors
would not ordinarily be able to draw for themselves; i.e., the
conclusion is beyond the ken of the average layman.” Smith v.
State, 247 Ga. 612, 619 (1981). See also Bly, 283 Ga. at 457 (noting
precedent that expert opinion on an issue is admissible if it “is
one 	in 	which 	jurors 	would 	not 	ordinarily 	be 	able 	to 	draw
themselves”). “The fact that such expert testimony may also
indirectly, 	though 	necessarily, 	involve 	[another 	witness’s]
credibility does not render it inadmissible.” Cade v. State, 289 Ga.
805, 809 (2011) (cleaned up).
Here, Vega’s defense was that he was experiencing a drug-
induced mania at the time of the robbery. In support of that claim,
he attempted to show that he had a frontal lobe abnormality that
made him susceptible to a drug-induced mania. This fact was
beyond the ken of jurors, which is why Vega offered Dr. Sachy’s
expert opinion that Vega had a frontal lobe abnormality after
evaluating 	Vega’s 	MRI. 	In 	rebuttal, 	Dr. 	Hess 	criticized 	Dr.
Sachy’s conclusions and opined that Vega’s MRI revealed no brain
abnormalities. Dr. Hess further opined that Dr. Sachy’s opinion
in the Rivera case was “erroneous” and that “[t]here was imaging

20
data that was used and misinterpreted totally, if not fabricated.
And I feel that what he does is a disservice to the public.” Dr. Hess
clarified that he was offering his opinion of Dr. Sachy’s work,
generally stating that Dr. Sachy was not qualified to interpret
MRIs.
In context, most of Dr. Hess’s testimony (even though
critical of Dr. Sachy) did not accuse Dr. Sachy of untruthfulness,
but rather stated that Dr. Sachy’s method of evaluation was
unsound and unreliable. Because most of Dr. Hess’s testimony did
not speak directly to Dr. Sachy’s truthfulness, trial counsel was
not deficient for failing to object to that testimony. See Davis v.
State, 306 Ga. 140, 147 (2019) (rejecting claim that trial counsel
was deficient for failing to object on improper bolstering grounds
to detective’s testimony that a witness’s account of the crime was
consistent with his investigation, because such testimony “did not
speak directly to [the witness’s] truthfulness”).
The only statement that was close to a statement on Dr.
Sachy’s credibility was Dr. Hess’s statement that Dr. Sachy might
have “fabricated” his evaluation in the Rivera case. But even if
this 	testimony 	about 	a 	“fabricated” 	statement 	constituted 	a
violation of former OCGA § 24-9-80, Vega cannot show prejudice
from trial counsel’s failure to object to it.
Aside 	from 	the 	comment 	that 	Dr. 	Sachy 	may 	have
“fabricated” 	his 	evaluation 	in 	the 	Rivera 	case, 	Dr. 	Hess
challenged Dr. Sachy’s evaluations as being unsound without
remarking upon whether Dr. Sachy was being truthful. And Dr.
Sachy admitted in his testimony that plenty of reputable doctors
would characterize Vega’s MRI as normal, lending support to Dr.
Hess’s 	conclusion 	that 	Dr. 	Sachy’s 	interpretation 	was
“erroneous.”
More 	importantly, 	Dr. 	Hess’s 	testimony 	about 	a

21
“fabricated” 	statement 	was 	limited 	to 	an 	opinion 	about 	Dr.
Sachy’s MRI evaluation in a different case. But Dr. Sachy’s
overarching opinion that Vega was experiencing drug-induced
mania 	during 	the 	robbery 	was 	not 	dependent 	on 	his 	MRI
evaluation of Vega. Dr. Sachy assessed that Vega had a frontal
lobe abnormality based also on functional testing, and Dr. Hess’s
criticism did not touch on this functional testing. Nor did Dr. Hess
comment on the expert opinion offered by Dr. Shaffer, whose
opinion 	that 	Vega 	had 	a 	frontal 	lobe 	dysfunction 	and 	was
suffering from a substance-induced manic episode during the
robbery did not depend on Dr. Sachy’s MRI evaluations. In other
words, Vega presented other evidence, aside from Dr. Sachy’s
MRI evaluation, to show that he had a frontal lobe abnormality.
Regardless, 	evidence 	that 	Vega 	had 	a 	frontal 	lobe
abnormality did not prove he experienced drug-induced mania
during the robbery. Dr. Sachy acknowledged that frontal lobe
abnormality was 	not the 	cause of 	mania 	and 	merely 	might
increase susceptibility to manic behavior. The critical issue for
Vega 	was 	not 	merely 	proving 	that 	he 	had 	a 	frontal 	lobe
abnormality, but that he was suffering from medication-induced
mania during the robbery. And the overwhelming trial evidence
showed that he was not, at least to the extent that he could not
distinguish between right and wrong.
That evidence showed that leading up to the robbery, Vega
and 	his 	then-girlfriend 	complained 	about 	money. 	And 	Vega
admitted after the robbery that he was looking for “fast money.”
This evidence showed that Vega had a motive and a plan to
commit the robbery, and this evidence of criminal intent negated
his claim that he robbed the bank because he had an adverse
reaction to his prescribed medication. See Bradshaw v. State, 296
Ga. 650, 657 (2015) (“Motive has been defined as the reason that

22
nudges the will and prods the mind to indulge the criminal
intent.”). Cf. Castillo-Velasquez v. State, 305 Ga. 644, 649 (2019)
(evidence showing criminal intent rebutted defendant’s claim of
delusional compulsion).
Vega’s behavior during the robbery was also inconsistent
with mania, at least to the extent that he claimed he was unable
to distinguish between right and wrong. Vega was described as
calm and not disoriented. Although there is evidence that Vega
had some side effects consistent with mania after he began taking
Paxil one month before the robbery, Dr. Ross — the State’s
primary expert, who had no connection to the Rivera case —
testified that even if Vega was experiencing mania at the time of
the robbery, he was able to distinguish right from wrong, as
evidenced by the fact that he disguised himself during the robbery
and fled the scene. See Jenkins v. State, 313 Ga. 81, 89 (2022)
(“[T]he fact of an accused’s flight, escape from custody, resistance
to arrest, concealment, assumption of a false name, and related
conduct, is admissible as evidence of consciousness of guilt for the
charged offense, and thus of guilt itself.” (cleaned up)).
Even Dr. Sachy acknowledged that Vega’s actions and
demeanor during the crime were inconsistent with a high degree
of mania. Dr. Sachy admitted he did not discuss with Vega if he
was taking Paxil at the time of the armed robbery and refused to
consider whether Vega’s alcohol use affected Vega’s decision to
rob the bank. See Payne v. State, 273 Ga. 317, 318 (2001) (“The
inability to distinguish between right and wrong is not a defense
if 	the 	inability 	is 	a 	consequence 	of 	voluntary 	intoxication.”
(cleaned up)); Carter v. State, 248 Ga. App. 139, 140–41 (2001)
(evidence supported jury’s finding that defendant’s intoxication
was 	not 	the 	result of 	excusable 	ignorance 	where 	defendant
consumed 	alcohol 	while 	on 	prescription 	medication 	against

23
doctor’s orders). Even if Dr. Sachy’s credibility was “extremely
important,” as the habeas court believed it was, Dr. Sachy’s own
testimony did very little to show that Vega’s consumption of Paxil
caused a manic state such that he was unable to distinguish
between right and wrong. If anything, Dr. Sachy did the opposite
by testifying that Vega’s insight and judgment actually improved
while taking Paxil.
In sum, very strong evidence showed that Vega’s decision
to rob the bank was not the result of drug-induced mania.
Accordingly, we cannot say that there was a reasonable likelihood
that the outcome of Vega’s trial would have been different had
trial counsel objected to Dr. Hess’s statement that Dr. Sachy
“fabricated” MRI evaluations in the Rivera case. Dr. Sachy’s MRI
evaluations were not themselves central to Vega’s defense, there
was significant other evidence that undermined Dr. Sachy’s
credibility, and there was strong evidence that Vega was able to
distinguish right from wrong during the robbery and was not
experiencing a drug-induced mania. See Lupoe v. State, 300 Ga.
233, 246 (2016) (no reasonable probability that an objection to
improper bolstering would have resulted in a different outcome at
trial because of, among other things, the overwhelming evidence
of the defendant’s guilt); Rozier v. Caldwell, 300 Ga. 30, 34 (2016)
(no prejudice from failure to object to improper bolstering where
there was overwhelming evidence of guilt and the witness who
improperly bolstered was not the only source of that evidence).
Therefore, habeas court erred in granting relief on this ground.
iii. The habeas court did not decide whether trial counsel
was 	ineffective 	for 	failing 	to 	object 	to 	Dr. 	Hess’s
testimony based on improper impeachment.
Vega also argues (in conjunction with the above argument

24
under former OCGA § 24-9-80) that trial counsel should have
objected to Dr. Hess’s testimony under former OCGA § 24-9-84,
which allowed for impeachment of a witness’s credibility by
inquiring into 	a witness’s 	reputation 	for 	untruthfulness 	but
generally disallowed specific instances of misconduct. Vega raised
this issue in his petition for a writ of habeas corpus, but as the
Warden correctly points out, the habeas court did not cite this
statute, 	cite 	any 	cases 	citing 	this 	statute, 	or 	discuss
impeachment. Because the habeas court did not address this
claim, the issue must be remanded to the habeas court for further
proceedings. See Turpin v. Todd, 268 Ga. 820, 833 (1997).
Similarly, the habeas court did not consider Vega’s claim
that trial counsel was ineffective for failing to advise him properly
regarding a plea deal he was offered, concluding that it was
“moot” on account of granting Vega relief on the other grounds.
Because we hold that the habeas court erred in granting relief on
those grounds, the habeas court must consider this claim on
remand.
Judgment reversed in part, and vacated and remanded in
part. All the Justices concur, except Bethel, J., disqualified.