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Final Copy 288 Ga. 810 S10A1754. PERKINS v. HALL. NAHMIAS, Justice. In 1997, a jury convicted David Aaron Perkins of the murder of Herbert Ryals III, and of related offenses, and it sentenced Perkins to death for the murder. This Court affirmed unanimously on direct appeal, for which Perkins had the same counsel. See Perkins v. State, 269 Ga. 791 (505 SE2d 16) (1998). With new counsel, Perkins filed a petition for a writ of habeas corpus on September 27, 1999, which was denied more than nine years later, on October 10, 2008. This Court granted Perkins's application for a certificate of probable cause to appeal and requested that the parties address the following four issues: (1) whether the habeas court erred by denying Perkins's claim that his trial counsel rendered ineffective assistance during the sentencing phase; (2) whether the habeas court erred regarding Perkins's claim that he was mentally incompetent during his trial; (3) whether the habeas court erred regarding Perkins's claim regarding three jury notes that were allegedly received by the trial court during Perkins's trial; and (4) what action this Court should take in light of the allegation by three witnesses in the habeas court that they were misled when asked to sign certain affidavits. In addition to these issues, Perkins has raised several others. For the reasons set forth below, we reverse the habeas court's order insofar as it denied Perkins's claim that he was entitled to a new sentencing trial, we affirm regarding the habeas court's

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denial of Perkins's claim that he was mentally incompetent at the time of trial, and we remand with direction regarding several remaining issues.1 I. Factual Background In Perkins's direct appeal, we held that the evidence at trial was sufficient to support his convictions for malice murder and possession of a knife during the commission of a felony, and we affirmed his sentence of death based on the aggravating circumstances that the murder was committed while Perkins was engaged in the commission of an aggravated battery and was outrageously and wantonly vile, horrible, and inhuman in that it involved depravity of mind and an aggravated battery to the victim. See Perkins, 269 Ga. at 792, 792 n. 1. In brief summary, the evidence at trial showed that, on the morning of August 13, 1995, Perkins was entertaining a neighbor, Herbert Ryals III, who shared an interest in guitar playing. Both men were drinking. Perkins beat Ryals with his guitar, stabbed and cut him 11 times, and hit him in the head with a liquor bottle. The evidence showed that there was an extended struggle throughout the apartment and that Ryals eventually died of blood loss in Perkins's bathroom. Perkins testified at trial that he began stabbing Ryals in self-defense after Ryals hit him from behind unexpectedly and came toward him with "some sharp object." Perkins testified that he then went to the bathroom and "checked my head" and that he resumed his attack on Ryals with the liquor bottle only after Ryals once again began attacking him. However, the evidence indicated that Perkins had no injuries
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We trust that the litigation and resolution of this case will proceed with greater speed on

remand.

shortly after the murder, and witnesses testified that Perkins had made a comment on the night before the murder suggesting that something untoward might happen later that night because there was a full moon. II. Ineffective Assistance of Counsel During the Sentencing Phase Perkins argues that his trial counsel rendered ineffective assistance in that they were insufficiently prepared for the sentencing phase.2 To prevail on this claim, Perkins must show that his trial counsel rendered constitutionally deficient performance and that actual prejudice of constitutional proportions resulted. See Strickland v. Washington, 466 U.S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783-784 (325 SE2d 362) (1985). Counsel's performance is measured according to the professional norms prevailing at the time of trial. See Hall v. McPherson, 284 Ga. 219, 221 (663 SE2d 659) (2008). Counsel's performance is considered in light of the circumstances as they existed at the time of trial, and the "`distorting effects of hindsight'" are disregarded. Wiggins v. Smith, 539 U. S. 510, 523 (123 SC 2527, 156 LE2d 471) (2003) (quoting Strickland, 466 U. S. at 689). To show sufficient prejudice to prevail on his ineffective assistance claim, Perkins must show that "there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Smith, 253 Ga. at 783 (citation omitted). This Court
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Perkins has also claimed in summary fashion that trial counsel rendered ineffective assistance in the guilt/innocence phase. We deem these unsupported claims to have been abandoned. See Supreme Court Rule 22; Whatley v. Terry, 284 Ga. 555, 573 (668 SE2d 651) (2008) (finding claims supported only by an attempt to incorporate arguments in the habeas court to have been abandoned); Head v. Hill, 277 Ga. 255, 269 (587 SE2d 613) (2003) (finding claims "lacking in specific argument" to be abandoned).

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accepts the habeas court's findings of fact unless they are clearly erroneous, but we apply the law to those facts de novo. See Head v. Carr, 273 Ga. 613, 616 (544 SE2d 409) (2001). In weighing prejudice, we consider the collective prejudice from all of trial counsel's deficiencies. See Schofield v. Holsey, 281 Ga. 809, 811-812, n. 1 (642 SE2d 56) (2007). A. Deficient Performance There is some tension, if not outright contradiction, between lead counsel's and co-counsel's accounts of who was responsible for preparing for the sentencing phase. Lead counsel testified that the responsibility was co-counsel's, while co-counsel testified that he prepared for the sentencing phase only in consultation with, and under the leadership of, lead counsel. This breakdown of communication and organization seems to explain, at least in part, why Perkins's case was not investigated more throughly than it was. See Terry v. Jenkins, 280 Ga. 341, 344 (627 SE2d 7) (2006) (affirming the habeas court's vacating of a death sentence where lead counsel and cocounsel miscommunicated regarding who would be responsible for preparing evidence). The first aspect of trial counsel's performance that was deficient was their failure to fully investigate whether Perkins had suffered one or more brain injuries prior to his crimes. Perkins's original co-counsel, who was later replaced at his insistence, discovered that Perkins once was attacked by several men with a steel rake, that prongs of the rake were embedded in his skull and had to be removed surgically, and that Perkins ever since has had an identifiable hole in his skull. That lawyer testified in the 3

habeas court that she became concerned that Perkins might have suffered an injury to the frontal lobe of his brain and that she therefore attended a seminar on frontal lobe injuries presented by an Emory University professor. The evidence in the habeas record shows that she sent two requests for medical records regarding treatment Perkins received as a result of the rake incident. However, one of the requests bears what was, or at least now is, an incorrect mailing address, and the second request listed an incorrect birth year for Perkins. She testified that she nevertheless received a response from the hospital, which included Perkins's name and a medical records number but which indicated that the records were too old to still be available; however, habeas counsel have now succeeded in obtaining those records from the hospital. She also testified that Perkins stated to her that he was "not going to be branded as mentally incompetent" and that lead counsel was not interested in pursuing her theory of possible brain damage. Perkins eventually demanded that she be removed as co-counsel, primarily because she had contacted a woman who had been visiting him at the jail and because she had contacted his jail mates seeking information about his mental condition. As discussed below, lead counsel was unable to persuade Perkins to submit to an examination by a psychiatrist or psychologist. In light of all of the evidence available, it seems that the only manner in which trial counsel clearly rendered deficient performance regarding the rake incident was in not interviewing family members and friends regarding any possible changes in Perkins's behavior following the incident. 4

Trial counsel also performed deficiently by unduly limiting their interviews of Perkins's family and friends to an unreasonably narrow range of persons. The record indicates that counsel did meet repeatedly with Perkins and his mother and that counsel contacted Perkins's estranged second wife. Counsel also apparently contacted Perkins's aunt but did not ask her about his background. Although the habeas court further found that trial counsel had attempted to contact his father, his sister, and a third person regarding whom the record appears silent, it is clear that these attempts were limited to taking his mother's word at face value that the witnesses were "unavailable" and making some telephone calls that were never returned. Furthermore, there is nothing in the trial or habeas records to suggest that trial counsel attempted to contact any of the numerous other family members and friends who testified in the habeas court. The habeas court found that trial counsel's failure to take further steps to interview Perkins's other relatives was due to his own resistance to having counsel investigate his background more fully. In his testimony in the habeas hearing, cocounsel gave this account of Perkins's reaction to inquiries about possible mitigating evidence: He did not give me a list of things that he didn't want me to do and that he did want me to do. [However, h]e had certain things that he did not want us to go into. He did not want to be labeled crazy. He did not want us to go into a great deal of his childhood background. He made it pretty . . . clear that he didn't believe . . . that was relevant. In his deposition, co-counsel gave the following, similar testimony about contacting Perkins's family members: 5

He made it clear that that's not what he wanted me to do. . . . The other family members were either unresponsive or just unavailable, and he never expressed any desire that I go find them. Co-counsel testified that he now, in retrospect, believes that he erred too far on the side of establishing a good rapport with Perkins rather than pressing Perkins and other persons for additional mitigating evidence.3 The ABA Guidelines at the time of Perkins's trial, which this Court has acknowledged may serve as a guide to reasonable defense preparations in capital cases, indicate that trial counsel should conduct an investigation seeking possible evidence for the sentencing phase "regardless of any initial assertion by the client that mitigation is not to be offered." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), 10.4.1 (C). See also McPherson, 284 Ga. at 221 (noting the relevance of published

professional guidelines in assessing what might have been reasonable in a particular case). The ABA Guidelines, at first blush, might appear to be in tension with this Court's previous decisions indicating that the client is ultimately the master of his own defense, including whether or not to present any mitigating evidence. See Colwell v. State, 273 Ga. 634, 638 (544 SE2d 120) (2001) (holding that the trial court had "properly respected Colwell's right to make the `ultimate decision about' what sort of case to present" (citation omitted)); Morrison v. State, 258 Ga. 683, 685-686 (373 SE2d

We note that, while this testimony is relevant in assessing what counsel actually did, the question of law regarding the reasonableness of those actions is for this Court to decide.

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506) (1988) (noting that, at Morrison's request, no mitigating evidence was presented). However, we provided a fuller explanation of the correct analysis in discussing the sentencing phase of another capital case: The record reveals that Mize's lawyers, despite Mize's resistance, conducted some investigation of Mize's background and informed Mize about pursuing a mitigation defense. But the final decision about the defense belonged to Mize. Mize v. State, 269 Ga. 646, 656 (501 SE2d 219) (1998). In other words, reasonable attorney performance includes investigating mitigating evidence to the extent feasible given the defendant's willingness to cooperate and then, if the defendant insists, following his instructions regarding the ultimate defense to pursue. Perkins's trial counsel plainly failed to take such an approach in investigating his background. The Warden correctly argues that trial counsel were limited in their ability to investigate Perkins's mental health issues because he steadfastly refused to participate in an evaluation by either the court-appointed expert or by the expert hired privately by his trial counsel with funds provided by the trial court. See Jenkins v. State, 265 Ga. 539, 540-541 (458 SE2d 477) (1995) (holding that expert mental health testimony derived from an evaluation of a defendant is admissible only if the defendant cooperates in an evaluation by an expert selected by the State). Nonetheless, we conclude that trial counsel performed deficiently by failing to sufficiently develop mitigating evidence from non-experts in light of the following: (1) the fact that trial counsel had a duty to make reasonable efforts to investigate Perkins's background despite Perkins's

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resistance to being "labeled [as] crazy" and his resistance to having his background probed deeply; (2) the fact that presenting at least some of Perkins's background was obviously possible, despite his reservations, because trial counsel did in fact present some testimony about his background at trial through his mother; (3) the fact that trial counsel took only limited steps to obtain information from Perkins's family and friends other than his mother and estranged wife; (4) the fact, discussed below, that trial counsel had reason to believe from the evidence that they already possessed that Perkins had a troubled background and a possible brain injury; and (5) the fact that habeas counsel, using methods that were available to trial counsel despite Perkins's lack of cooperation, were ultimately able to develop compelling mitigating evidence. B. Prejudice Having concluded that trial counsel performed deficiently in obtaining non-expert mitigating evidence for the sentencing phase, we turn to whether that deficiency had a reasonable probability of changing the outcome of Perkins's trial. The first category of important additional evidence from non-experts concerns Perkins's traumatic childhood. Perkins's mother testified in the sentencing phase. She said that Perkins's father, her ex-husband, slapped and abused her; that, from the time Perkins was three years old, his father would beat him with his fists, hands, and a belt; that Perkins "was very much abused" and that she would step in to take beatings instead of letting him take them; that Perkins's father forbade him from participating in sports after he obtained only "medium" grades in school; that Perkins's father gave her only 8

ten dollars per week for groceries; that Perkins's father would often stay out for half the night drinking; that Perkins's father was eventually forced out of the family home after she was beaten and left covered with bruises on one particular occasion; and that Perkins wanted to move in with his father at the age of 13 and, upon his arrival at his father's house, was given "a bottle of Jack Daniels and all the pot he could smoke." Perkins's new evidence of his abusive background is admittedly somewhat cumulative, but overall it is far more compelling: (1) his aunt testified by affidavit that, on one occasion when Perkins was four years old, his father beat him at a picnic with his fists until he collapsed and that, on another occasion, his father beat him with a belt on a camping trip for no reason; (2) his first wife testified by affidavit that his father hit him as an adult "a number of times," that he "would have what [she] call[ed] flashbacks where he would see himself being beaten by his father," and that one night, while he and his father were drinking, his father urinated on him; (3) his father admitted in an affidavit that he "went overboard" hitting Perkins at a picnic when he was three years old, gave him "a number of whippings . . . often times because he just wouldn't listen," and gave him liquor and marijuana from the age of 15 or 16; (4) his mother gave affidavit testimony describing Perkins's somewhat odd religious beliefs; (5) another cousin gave affidavit testimony indicating that Perkins's father would "whip" him with an open hand or a belt for things like breaking a window or tracking in dirt and that he began using drugs at 12 or 13 years old when his father gave them to him; (6) his younger sister gave affidavit testimony indicating that their father hit and bruised their 9

mother and put his hand around her throat and that Perkins once attempted to slit his wrists with a razor blade; (7) his former step-mother gave affidavit testimony indicating that his father gave him drugs and alcohol, was a drunk, and beat him with his fists beginning at age 12 or 13; (8) a friend of his wife gave habeas testimony indicating that she had seen cuts on his wrists; (9) his mother and a cousin gave affidavit testimony indicating that a young male neighbor had raped Perkins when he was eight years old; (10) his wife gave affidavit testimony indicating that his father beat him and his mother when he was a child; and (11) his daughter gave affidavit testimony indicating that he "said sometimes he would re-live the beatings in his mind and that it would freak him out."4 Even more powerful than the evidence of Perkins's traumatic personal background is the additional evidence habeas counsel were able to obtain concerning his change in behavior and apparent mental distress following two head injuries. As discussed above, trial counsel learned pre-trial that Perkins had been attacked with a steel rake when he was approximately 20 years old, that several prongs of the rake had become stuck in his skull and had to be surgically removed, and that he was left with a permanent, identifiable hole in his skull. Pretermitting whether trial counsel performed deficiently in seeking Perkins's medical records regarding this injury, which

The testimony at issue in these last three points may be inadmissible hearsay. See Gissendaner v. State, 272 Ga. 704, 714-715 (532 SE2d 677) (2000) (addressing the proper application of the rules of evidence in the sentencing phase of a death penalty trial). We need not resolve that issue, however, because our finding of prejudice is sufficiently supported without this evidence.

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indicate that two prongs of the rake actually penetrated his brain, we note that testimony from lay witnesses was available that would have shown that Perkins, while somewhat troubled before being injured by the rake, suffered from significant personality and cognitive changes afterward. Furthermore, upon investigating possible consequences from the rake incident, trial counsel would likely have discovered the evidence Perkins presented in his habeas proceedings that, at approximately 18 years old, Perkins was involved in an automobile accident that left him in a coma for five days after the accident and that, as with the rake incident, he suffered from significant personality and cognitive changes afterward. The relevant new testimony about the effects of these two head injuries was as follows: (1) Perkins's mother gave affidavit testimony indicating that, after the automobile accident, he suffered personality changes, lost approximately six months of memory, slurred his speech constantly, had blurred vision and dizziness, had constant ringing in his ears and blackouts, and had problems with short-term memory and that, after the rake incident, his headaches intensified, he began to drink heavily to numb his pain, he would stare suddenly for several minutes, and he had scars on his wrists; (2) his aunt gave affidavit testimony indicating that, after the automobile accident, Perkins "became more sullen and more prone to act out" and that he "seemed to become more easily agitated, especially when he was drinking"; (3) his ex-wife gave affidavit testimony indicating that, after the automobile accident, Perkins had "blackouts" even when he was not drinking, he once stuck a knife in a couch and shortly afterward 11

seemed not to know who had done it, and he threatened to slit his wrists and that, after the rake incident, he "was really messed up," "would constantly complain of headaches and nausea," and "would drink and smoke pot to try to kill the pain"; (4) his father gave affidavit testimony indicating that Perkins got into a fight suddenly and for no apparent reason and further indicating that to some extent even since childhood he had seemed to suffer from blackouts and sudden and unexplained staring into space; (5) his cousin gave affidavit testimony indicating that, after the automobile accident, Perkins had to be restrained on his hospital bed, "would look at you but not see you," began drinking more heavily, complained of constant headaches, and got into more trouble than before; (6) two other cousins gave affidavit testimony indicating that, after the automobile accident, Perkins had to be restrained on his hospital bed and that his behavior and memory deteriorated after the automobile accident and the rake incident; (7) his younger sister gave affidavit testimony indicating that, after the automobile accident and the rake incident, Perkins "seemed different," had memory problems, would "zone out" more than he had before the accidents, and attempted to slit his wrists; (8) his wife gave affidavit testimony indicating that Perkins had constant headaches from the time she met him, which was after the two head injuries, that he drank to relieve his headaches, that he was often depressed, that he had scars on his wrists, and that he would "zone out" and have memory problems even when he was not drinking or taking drugs; (9) his daughter gave affidavit testimony indicating that Perkins "would break out in a cold sweat and get this odd look in his eyes" as if he were "in a trance"; (10) 12

a friend of his wife gave affidavit testimony indicating that she had seen cuts on Perkins's wrists; (11) one of his friends gave affidavit testimony indicating that, on one occasion shortly after the rake incident, Perkins "went schizo," "started freaking out," threw a five-gallon paint can, "jumped on" the friend, and "was just going nuts" and that, in general after the rake incident, his "normal self wasn't that normal"; and (12) another friend and several jail mates gave further testimony about how Perkins would stare and "zone out." We note again that, although Perkins resisted investigation of this sort of evidence and refused expert mental health evaluations, he did not preclude his trial counsel from presenting a mitigation defense that included details about his personal history. Compare Mize, 269 Ga. at 656. After our review of the non-expert evidence that Perkins's habeas counsel discovered and presented in the habeas court, which would have been available to trial counsel upon a reasonable investigation, we conclude that there is a reasonable probability that the jury would have reached a different outcome in the sentencing phase of Perkins's trial if that additional evidence had been presented at trial. Accordingly, we reverse the habeas court's judgment on this issue and direct that Perkins's current death sentence be vacated.

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III. Competence to Stand Trial A. Trial Proceedings on Competence Perkins claimed in the habeas court that he had been mentally incompetent at the time of his trial. In the trial court, Perkins initially filed a special plea of incompetence. See OCGA

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