In the Supreme Court of Georgia
Decided: February 8, 2016
S15A1717. OTIS v. THE STATE.
BENHAM, Justice.
Appellant Geary Otis was charged in a seven-count indictment with
malice murder and other offenses arising out of the death of one victim and the
assault of another on June 17, 2013. On April 7, 2014, a jury was impaneled
and sworn and the State and defense presented their opening statements. At the
conclusion of its opening statement, the defense revealed its intent to pursue an
insanity defense, for which it had not given prior notice to the State. Outside the
presence of the jury, the State objected to the raising of this defense due to the
lack of prior notice. In response, the defense asserted that because Otis would
not be calling an expert witness to support the defense, he was not required to
give advance notice pursuant to Uniform Superior Court Rule 31.11 and what
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Uniform Superior Court Rule 31.1 reads as follows:
All motions, demurrers, and special pleas shall be made and filed at or before the
time set by law unless time therefore is extended by the judge in writing prior to trial.
Unless otherwise provided by law, notice of the state’s intention to introduce child
victim hearsay statements, notice of the defenses’s intention to raise the issue of
insanity or mental illness, or the defense’s intention to introduce evidence of specific
is now Rule 31.5 (B)2 (formerly Rule 31.4), and relied upon the holding in
Abernathy v. State, 265 Ga. 754 (462 SE2d 615) (1995).
At a hearing on the issue the following day, the trial court, sua sponte, and
over appellant’s objection, declared a mistrial and rescheduled the case for trial
in two weeks. Appellant filed a plea in bar on the ground of double jeopardy
and, after conducting a hearing on the double jeopardy issue, the trial court
denied appellant’s plea in bar. On appeal, Otis asserts the trial court erred in
declaring a mistrial and in denying his plea in bar. We agree, and reverse.
In Abernathy, this Court stated that “[b]ecause 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, . . . [a defendant] need not
provide notice pretrial if he intends to present evidence of mental illness solely
through lay witnesses.” Id. at 755 (2). At the hearing on the notice issue, the
State acknowledged this Court’s interpretation of USCR 31.1 in the Abernathy
acts of violence by the victim against third persons, shall be given and filed at least
ten days before trial unless the time is shortened or lengthened by the judge. Such
fillings shall be in accordance with the following procedures.
2
Uniform Superior Court Rule 31.5 (B) reads as follows:
Except for good cause shown, the issue of insanity shall not be raised in the trial on
the merits unless notice has been filed and served ahead of trial as provided in these
rules.
2
opinion, and did not seek a mistrial, but only a continuance in order to prepare
to present evidence to rebut the insanity defense. The trial court, however,
premised its analysis of the mistrial issue upon its conclusion that the Abernathy
holding is inapplicable outside the context of an insanity defense pursued in the
penalty phase of a death penalty case. Accordingly, the trial court declared a
mistrial because it found Otis had failed to comply with the mandatory notice
requirement contained in USCR 31.1.
Although Abernathy was decided in the context of interim review of a
death penalty case, this Court’s holding and reasoning were not limited to that
context. The Court of Appeals has interpreted Abernathy in this manner3, as
well as a leading treatise on Georgia criminal procedure. See Daniels Criminal
Trial Practice (2015-2016 ed.), § 14:92. In the two decades since this Court
issued the Abernathy opinion, the Council of Superior Court Judges has not
sought to amend the Uniform Superior Court Rules in any manner that would
narrow the Abernathy holding in this regard. Accordingly, the circumstances
in this case did not demand entry of mistrial. The trial court erred in entering
a mistrial over the appellant’s objection because appellant did not violate USCR
3
Crossley v. State, 261 Ga. App. 250, 250 n.4 (582 SE2d 204) (2003).
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31.1 when he announced his intent to raise the insanity defense based solely on
lay witness testimony without first giving timely notice to the State. As a result,
appellant may not be retried. See Bagwell v. State, 129 Ga. 170, 171 (58 SE 650
(1907) (“[W]here a mistrial has been improperly declared [over the protest of
the accused], the prisoner cannot be again tried.”).
Judgment reversed. All the Justices concur.
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S15A1717. OTIS v. THE STATE.
NAHMIAS, Justice, concurring.
I join the Court’s opinion in full, because it correctly applies to the
circumstances of this case the Court’s clear holding interpreting Uniform
Superior Court Rule 31.1 and what is now Rule 31.5 in Abernathy v. State, 265
Ga. 754 (462 SE2d 615) (1995): “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.” Id. at 754. I question the correctness of that
holding, which was based on the proposition that “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.” Id. at 755. That may be the
primary purpose of the notice rules, but the Abernathy opinion never quoted or
discussed the actual language of the rules, which speaks of the defendant’s
intention “to raise the issue of insanity or mental illness,” USCR 31.1 (emphasis
added), rather than “to introduce expert evidence on insanity or mental illness”
– even though other provisions of Rule 31 speak in terms of providing notice of
evidence rather than issues (e.g., the defendant’s “intention to introduce
evidence of specific acts of violence by the victim”).
In any event, we should apply Abernathy as a matter of stare decisis,
because it was an interpretation of court rules. If the holding of Abernathy was
incorrect or simply should be different as a matter of policy, it can be changed
through the rule-making process, which is even easier than revising an
incorrectly interpreted statute. Cf. Ga. Dept. of Natural Resources v. Center for
a Sustainable Coast, Inc., 294 Ga. 593, 601 (755 SE2d 184) (2014) (explaining
that the doctrine of stare decisis is more compelling for decisions interpreting
statutes than decisions interpreting constitutional provisions because of the
comparative difficulty for the democratic process to correct or alter the
decision). And as the Court’s opinion notes, the uniform rules have not been
amended in the two decades since Abernathy to alter the holding in that case.
I write to emphasize that Uniform Superior Court Rules 31.1 and 31.5
need to be revised, no matter what we think of Abernathy. If we are going to
continue to follow Abernathy, the holding of that case should be made explicit
in the text of the rules, to ensure that trial judges, lawyers, and litigants who read
the rules understand that this Court has imposed a significant limitation upon
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their scope.1 Under Abernathy, the rules should refer to the intention to raise
“the issue of insanity or mental illness” (and in Rule 31.5, mental retardation as
well) “using expert evidence.” If instead it is decided that Abernathy should not
be followed, the rules should clearly abrogate its holding by adding “using
expert or non-expert evidence.” Or perhaps further consideration would result
in the adoption of amended rules that, like the federal rules of criminal
procedure, treat the affirmative defense of insanity differently from other
matters involving the defendant’s mental condition, requiring notice of the
former whether based on expert or lay evidence and notice of the latter only
when expert evidence will be offered. See Fed. R. Crim. P. 12.2 (a) (requiring
a defendant to provide pretrial notice of intent to assert “a defense of insanity”)
1
The risk of Abernathy’s holding being overlooked in applying these rules is illustrated by
the case of Jackson v. State, 267 Ga. 130 (475 SE2d 637) (1996). The appellate briefs in that case
show that Jackson (like Otis here) sought to raise an insanity defense using only non-expert
evidence, so under Abernathy he was not required to provide pretrial notice of his intention. At his
trial in September 1993 – two years before Abernathy was decided – Jackson, the State, and the trial
court apparently read Rules 31.1 and 31.4 (now 31.5) to require (as their text said) pretrial notice of
his insanity issue, which Jackson had not provided, so he claimed that those rules were invalid
because they violated his constitutional due process rights (rather than that the rules simply did not
apply). His appeal was filed just two months after Abernathy, and this Court decided the appeal less
than a year after it decided Abernathy. Yet neither the parties in their briefs nor the Court in its
opinion mentioned Abernathy. To the contrary, the Court began its analysis of Jackson’s due process
claim by saying, “Although he had not complied with the ten-day notice requirement of Uniform
Superior Court Rules 31.1 and 31.4, Jackson sought to raise the issue of his insanity,” Jackson, 267
Ga. at 132 – even though under Abernathy, Jackson was not required to comply with that notice
requirement.
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and (b) (requiring a defendant to provide pretrial notice of intent to introduce
“expert evidence relating to a mental disease or defect or any other mental
condition of the defendant” bearing on the issue of guilt in any case or
punishment in a death penalty case).
Notice requirements for criminal defendants are departures from the
common law, but they may provide the State a fair opportunity to prepare to
rebut defenses or defense theories that are unusual or depend on evidence not
normally gathered in the course of preparing a prosecution, and thus they may
produce trials better aimed at the fundamental objective of our criminal justice
system, which is accurately determining the guilt or innocence of the accused.
Notice requirements may also allow the trial court to better manage the trial
process, which may be complicated in many ways by such issues. It is apparent
that the trial court in this case was striving to produce a fair trial, but the court
erred in not abiding by our holding in Abernathy. The result is that Otis cannot
be re-tried for the murder and other crimes he is alleged to have committed.
I am authorized to state that Justice Blackwell joins in this concurrence.
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