Fort, Warden v. Vega

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

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 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 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 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.

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 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 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 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)).

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).

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).

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 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.

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 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 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.

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 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

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.

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 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 “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 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 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 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.