Abernathy v. State, S95A1044

• Decision Date: 16 October 1995
• Docket Number: No. S95A1044,S95A1044
• Citation: 265 Ga. 754,462 S.E.2d 615
• Parties: ABERNATHY v. The STATE.
• Court: Georgia Supreme Court

Page 615

462 S.E.2d 615

265 Ga. 754

ABERNATHY v. The STATE.

No. S95A1044.

Supreme Court of Georgia.

Oct. 16, 1995.

John B. Sumner, Woodstock, Louis M. Turchiarelli, Marietta, for Dennis Virgil Abernathy, Jr.

Garry T. Moss, Dist. Atty., Canton, Michael J. Bowers, Atty. Gen., Susan V. Boleyn Sr. Asst. Atty. Gen., Peggy R. Katz, Asst. Atty. Gen., Department of Law, Atlanta, for the State.

HUNSTEIN, Justice.

The State is seeking imposition of the death penalty against Dennis Virgil Abernathy, Jr. for the murders of his mother and father at their home in Cherokee County. ¹ We granted Abernathy's application for interim appeal pursuant to OCGA § 17-10-35.1 to consider two pretrial orders rendered by the trial court pursuant to Uniform Superior Court Rule 31.4. The first order requires Abernathy to notify the State in accordance with USCR 31.1 if he intends to introduce at trial evidence of insanity, mental incompetence or mental illness as defined in OCGA § 17-7-131; the second order requires Abernathy to notify the State, by a specific deadline, if he does not intend to introduce evidence of mental illness in any phase of trial and, in the absence of such notice, to submit to an independent psychiatric evaluation or be barred from presenting such evidence, even in mitigation. We hold that pretrial notice of the defense's intent to present mental health evidence may be required only when the evidence is presented through experts. We further hold that the State may not obtain or use the results of an independent mental health evaluation to rebut purely lay testimony. We decline to limit the scope of the independent evaluation itself but reiterate that the State's use of the independent expert's testimony at trial is limited strictly to rebuttal. Finally, we hold that the amount of pretrial notice required in this case was both reasonable and adequate.

1. We recently held that exclusion of expert mental health evidence offered by the defense in mitigation during the sentencing phase of a capital trial is justified when the defendant refuses to submit to an independent mental health evaluation. Jenkins v. State, 265 Ga. 539(3), 458 S.E.2d 477 (1995). Accordingly, under Jenkins, the trial court in this case did not err when it ordered Abernathy to undergo an independent evaluation or be barred from presenting the testimony of a mental health expert in mitigation at the sentencing phase of his trial.

2. Abernathy contends that the trial court's orders in this case are overbroad in that they can be read to require notice and submission to independent evaluation even if Abernathy intends to introduce evidence of mental illness only through lay witnesses.

Our prior opinions clearly contemplate use of the independent mental health evaluation solely in rebuttal of expert testimony. In Jenkins, supra, we stated that a "court-ordered examination ... is essential to enable the prosecution to rebut expert mental health testimony, should appellant later choose to present evidence concerning his private examination." Id. at 541, 458 S.E.2d 477. See also Bright v. State, 265 Ga. 265, 272-273, 455 S.E.2d 37 (1995).

A review of the trial court's orders reveals that the first order requires notice no later than 10 days prior to trial of any intent to raise an issue of insanity, mental incompetence or mental illness as defined in OCGA § 17-7-131. ² The order contains no language exempting from the notice any lay witness testimony Abernathy may intend to present. The second order provides for an independent mental health evaluation following Abernathy's failure to declare that he does not intend to offer psychiatric or psychological evidence at trial. This order, like the first, contains no language acknowledging that Abernathy does not have to submit to an independent evaluation if he is able to state in advance that his evidence of mental illness will not include expert testimony. Finally, both orders fail to limit the use of the independent evaluation to the rebuttal of expert, as opposed to lay, testimony.

Because the purpose of notice is to give the State an opportunity to obtain an independent expert mental health evaluation and prepare its evidence in rebuttal, Jenkins; Bright, supra, Abernathy need not provide notice pretrial if he intends to present evidence of mental illness solely through lay witnesses. Abernathy may likewise avoid undergoing an independent evaluation if he is able in advance to assure the State that he will offer no evidence of mental illness through expert testimony. Finally, even if Abernathy undergoes an independent evaluation, the State may use that evaluation in rebuttal only if Abernathy offers expert testimony in mitigation. Because the trial court's orders do not expressly so provide, we remand the orders to the trial...