his conviction for the murder of Patricia Burley, Corey Smith
appeals from the denial of his motion for new trial, arguing
that the trial court erred in denying his motion because he
received ineffective assistance of counsel at trial. We
disagree and affirm.
in the light most favorable to the verdicts, the evidence
presented at trial shows the following. On the morning of
August 22, 2010, 54-year-old Burley was staying at the house
of her neighbor, Mary Williams. Burley had Down Syndrome and
according to her cousin, who cared for her, had the mental
capacity of a seven-year-old child. Burley was on the front
porch with Williams' grandson when Smith approached and
began talking to Burley. When the grandson asked Burley who
Smith was, she replied that Smith was her boyfriend.
grandson went inside the house and told Williams that a man
was on the front porch with Burley. Williams came outside,
and Smith introduced himself after Williams asked him his
name. Williams returned inside, but, when she came out a
little bit later, Smith was "hugging on" Burley.
Williams asked Burley to come inside. Later that evening at
around 10 p.m., Burley's cousin called Williams and asked
for Burley to return home. However, Burley did not return
grandson testified that when Burley left the house that
evening, she was walking with Smith away from her home,
toward her church. Another neighbor witnessed Burley walking
hand-in-hand with Smith through some bushes near his home.
Several days later, Burley's body was discovered next to
a trashcan in a wooded lot some distance away. An autopsy
revealed that Burley had died from asphyxiation. Smith's
partial palm print and a fingerprint were found on that
trashcan, and two witnesses informed police that they had
observed Smith pushing a trashcan near that area. A couple of
days before Burley's body was found, Smith was seen
scrubbing his hands and wiping his body down with water at a
nearby gas station. Investigators later found Burley's
DNA on Smith's shorts.
was arrested for Burley's murder. Prior to trial, Smith
filed a special plea of mental incompetence and a notice of
intent to raise insanity or mental incompetence. The court
ordered a competency-to-stand-trial evaluation and a
criminal-responsibility evaluation of insanity. A special
jury trial on the issue of competency was held on March 12,
2012. At that trial, the evaluator testified that Smith
suffered from schizophrenia with paranoid subtype. However,
the evaluator did not testify that Smith was unable to
distinguish between right and wrong or that he was operating
under a delusional compulsion at the time of the offense.
After the competency trial, the jury returned a verdict
against Smith's special plea of incompetence. Before his
trial, Smith requested jury charges on mental illness that
tracked the language pertaining to "guilty but mentally
ill" set forth in OCGA § 17-7-131 and on
considering mental illness with the evidence as a whole.
Smith ultimately presented a defense of innocence, rather
than insanity or mental illness, and the charges were not
given. Smith was found guilty. Although Smith
does not challenge the sufficiency of the evidence supporting
his conviction, as is our practice in murder cases, we have
reviewed the record and conclude that the evidence presented
at trial and summarized above was sufficient for a rational
trier of fact to find Smith guilty beyond a reasonable doubt
of the crime for which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 318-319 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
Smith argues that he received ineffective assistance because
his trial counsel failed to request a jury instruction on
insanity or mental illness as set forth in OCGA §
17-7-131. We disagree.
In order to succeed on his claim of ineffective assistance,
[Smith] must prove both that his trial counsel's
performance was deficient and that there is a reasonable
probability that the trial result would have been different
if not for the deficient performance. Strickland v.
Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d
674) (1984). If an appellant fails to meet his or her burden
of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.
Id. at 697 (IV); Fuller v. State, 277 Ga.
505 (3) (591 S.E.2d 782) (2004).
Wright v. State, 291 Ga. 869, 870 (2) (734 S.E.2d
876) (2012). "Decisions on requests to charge involve
trial tactics to which we must afford substantial latitude,
and they provide no grounds for reversal unless such tactical
decisions are so patently unreasonable that no competent
attorney would have chosen them." (Citation and
punctuation omitted.) Mitchell v. State, 282 Ga.
416, 420 (6) (d) (651 S.E.2d 49) (2007).
Smith generally asserts that the outcome of his trial would
have been different had trial counsel requested and the jury
received an instruction under OCGA § 17-7-131. However,
the record indicates that trial counsel actually requested a
charge on guilty but mentally ill that tracked that portion
of OCGA § 17-7-131, although the record does not
indicate why the charge was not given. Even assuming trial
counsel withdrew her request or waived the charge,
Smith's trial counsel testified at the motion for new
trial hearing that she made a strategic decision not to
pursue the affirmative defenses of insanity or mental
illness. This was because Smith maintained that he did not
commit the murder and because the evaluator had not concluded
that Smith was insane at the time of the murder. Indeed,
Smith steadfastly maintained his innocence even at the motion
for new trial hearing. Counsel's strategic decision was
not unreasonable under these circumstances, so Smith has
failed to prove that his counsel performed deficiently. See
King v. State, 282 Ga. 505, 507 (2) (a) (651 S.E.2d
711) (2007) (finding that the appellant did not prove
ineffective assistance when his trial attorney chose to argue
innocence rather than a lesser included offense where
defendant had asserted his innocence); Mitchell, 282
Ga. at 420 (6) (d).