The appellant, Keith Bryan Taylor, was convicted by a jury and sentenced to die for the murder of his wife Lori Taylor. 1

1. The Taylors moved into an apartment in Blackshear in July of 1986. Two years later, in August of 1988, Lori Taylor removed Keith Taylor's name from the lease and changed the locks. After that time, according to the apartment manager, Keith Taylor "wasn't supposed to be living there." However, Keith Taylor apparently moved back into the apartment sometime before January 12, 1989.

On that date, Lori Taylor's cousin drove Lori and Keith Taylor and their two children first to a pawn shop and then to the Pierce County Courthouse. Lori Taylor reported that her husband had threatened her and obtained a "good-behavior warrant." It was agreed that Keith Taylor would collect his personal effects from the apartment and move out.

Lori Taylor rode back to the apartment with her cousin, while Keith Taylor walked the two blocks or so to the apartment with the two children. Less than ten minutes later, a police officer drove to the apartments, to check on the situation following the issuance of the good-behavior warrant.

When he arrived, the children were locked out of the apartment. The victim's cousin had heard the victim saying, "Keith, don't do it." The officer knocked on the door. Keith Taylor answered. There was blood on his jacket and his hands were "dripping" with blood. He told the officer to take him to jail.

Lori Taylor was still alive, but died after the arrival of emergency medical technicians. The autopsist testified that she had suffered painful but non-fatal wounds to her head, chest and back. In addition, she had suffered a potentially fatal stab wound deep enough to penetrate her pleural cavity which was two-thirds filled with blood when he conducted the autopsy.

Her death was caused by a number of slash wounds which cut her neck practically from ear to ear, completely severed her trachea and reached "completely back to the front part of the cervical spine, or spinal column." The autopsist stated he could not say "exactly how many cuts were involved in making these wounds" because some cuts overlapped others and some likely "obliterated" others, but he could count "at least the beginning of six individual trails of incised wounds" in one of the two large gaping wounds "one above the other" in the neck. All the wounds appeared to have been inflicted before death.

A bloody knife was found in the front hall closet of the apartment. Keith Taylor's son identified the knife as one the defendant owned.

The evidence supports the jury's finding that Keith Taylor killed his wife. The defendant's primary defense was his mental condition. Although not conceding that he was the person who had committed the crime, he contended he was insane at the time of the crime or at least was mentally ill at the time of the crime.

Taylor testified on his own behalf at trial. He had been in the army for nine years. He had psychological and substance abuse problems while in the army and was discharged in 1984 after he refused to obey a direct order by a superior officer. After his discharge, he experienced considerable difficulty obtaining and keeping a job. He worked for three months with the City of Blackshear in 1986, but was terminated when he was injured on the job.

Taylor testified that upon his return to the apartment from the Pierce County Courthouse, he looked for his wife because he did not understand what she was doing. He found no one in the apartment except possibly his son. Then he heard someone knocking at the front door. When he opened the door, he saw the policeman. He knew something was wrong because he (Taylor) had blood on his hands.

Taylor had been evaluated in April of 1987 by a psychologist in connection with Taylor's application for social security disability benefits. The "diagnostic impressions" of the psychologist were "borderline intellectual functioning, schizophrenia, paranoid, chronic." He also described Taylor as being "manipulative, self-serving and capricious," as capable of sudden mood changes, and as being an individual who had "little in the way of incentive or ambition" and showed "no evidence of hallucinations, illusions, notions of grandiosity, ideas of reference or influence, thought broadcasting, flights of ideas, thought blocking, mania/hypomania, depersonalization, derealization, a poverty of emotion or bizarre ideation."

Taylor was counseled in 1987 and 1988 at the Satilla Community Mental Health Clinic. Two of his counselors (neither of whom were psychologists -- both had master's degrees in theology) testified at trial that, based on Taylor's self-reported auditory hallucinations, they initially diagnosed him as being paranoid schizophrenic. They counseled with the defendant about his drug, alcohol and gambling problems, and his inability to obtain work. One of the counselors testified that Taylor was a "spoiled brat" determined to "get his way."

A psychiatrist connected with the clinic testified that she saw the defendant in February of 1989 (after the crime occurred), and diagnosed "cocaine abuse, alcohol abuse, borderline intellectual functioning, schizoid personality and paranoid personality." She did not diagnose paranoid schizophrenia, noting that cocaine abuse could "mimic" that disorder. She acknowledged that before the defendant's arrest she had signed an "adjudication letter" containing a diagnosis of "malingering and substance abuse" and a report that Taylor attempted to use "mental illness to keep from facing responsibility when he gets into trouble."

A clinical forensic psychologist was retained with court-provided funds to evaluate the defendant after his arrest. He interviewed the defendant at jail and reviewed his medical history. He concluded that Taylor "suffers from a paranoid schizophrenic disorder." In his opinion, Taylor was not malingering. He was, however, unable to administer a battery of written psychological tests because Taylor refused to take them. He testified that Taylor ordinarily was capable of differentiating right from wrong, but that in connection with his wife he "would have severe limits in his ability to differentiate right and wrong."

The senior forensic psychologist for the Georgia Regional Hospital in Savannah evaluated Taylor. He testified for the state that in his opinion the defendant did not suffer from any serious mental disorder. In addition, the physician assigned to the jail testified that he had treated Taylor for physical ailments on several occasions at the jail and did not observe Taylor behaving in an unusual manner.

(a) The defendant objected to the testimony of the state's "psychologist" from the Georgia Regional Hospital in Savannah. His objections were that the witness held a Ph.D. degree in counseling, rather than psychology, that he was not an expert clinical psychologist, and was not qualified to render an expert opinion about the defendant's mental condition.

The witness testified that he held a bachelor's degree in psychology, a master's degree in rehabilitation counseling and a Ph.D. degree in counseling with emphasis in corrections and correctional counseling. His master's degree coursework consisted of approximately one-third counseling courses, one-third psychology courses and one-third electives. His doctorate coursework was equally divided between psychology and counseling coursework with no electives. He has post-degree training in forensic evaluations, is employed as a senior forensic psychologist by the state, and belongs to the American Psychological Association, the Georgia Psychological Association, the Coastal Association of Psychologists, and the American College of Forensic Psychology. He has conducted over 300 psychological evaluations for superior courts in this state, and has been declared an expert witness in the field of forensic psychology in both state and federal courts.

This court has held that the trial judge has a discretion in accepting or rejecting the qualifications of the expert, and his judgment in that respect will not be disturbed on appeal unless abused To qualify as an expert . . . generally all that is required is that a person must have been educated in a particular skill or profession: his special knowledge may be derived from experience as well as study. [Cits.] Formal education in the subject at hand is not a prerequisite for expert status." Bowden v. State, 239 Ga. 821, 826 (3) (238 SE2d 905) (1977) (cert. den. 435 U. S. 937) (1978); [cits.]. [Brown v. State, 245 Ga. 588, 589-590 (1) (266 SE2d 198) (1980).]

The trial court did not err by overruling the defendant's objection to the expertise of this witness, or by allowing the witness to testify as an expert witness in the field of forensic psychology.

(b) The defendant claims a violation of OCGA 17-7-130.1, which provides, in part:

When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense. . . .

The defendant argues that the Code was violated in two respects. First, there is no evidence in the record that the psychologist appointed by the court to examine the defendant was a licensed psychologist. Second, he was called as a witness by the state instead of by the court.

(c) The defendant argues the evidence demands a finding of not guilty by reason of insanity or, at least, guilty but mentally ill. We do not agree. The evidence, viewed in the light most favorable to the state, supports the jury's conclusion that the defendant was neither insane nor mentally ill. See Stripling v. State, 261 Ga. 1, 4 (3 a) (401 SE2d 500) (1991). The evidence supports the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court did not abuse its discretion by denying the defendant's motion for sequestered voir dire at the competency trial and at the trial of the case-in-chief. See Curry v. State, 255 Ga. 215 (2 a) (336 SE2d 762) (1985); Williamson v. Lucas, 171 Ga. App. 695 (1) (320 SE2d 800) (1984).

3. There was no abuse of discretion in the trial court's control of the competency-trial voir dire examination. Curry v. State, supra at 218; Waters v. State, 248 Ga. 355, 363 (3) (283 SE2d 238) (1981).

4. The defendant was not denied an evidentiary hearing on his motion for change of venue. He simply chose not to present evidence in addition to the voir dire examination of the prospective jurors. Compare Villa v. State, 190 Ga. App. 530 (2) (379 SE2d 417) (1989) (defendant's request for evidentiary hearing erroneously denied). The record supports the trial court's denial of the defendant's motion for change of venue. Lee v. State, 258 Ga. 82 (9) (365 SE2d 99) (1988).

5. Taylor contends the court erred by qualifying two prospective jurors who were, Taylor argues, impermissibly biased in favor of a death sentence. We note that the trial court well understood its duty in this regard. At a pre-trial hearing, the court explained:

[T]he two obligations of a juror . . . [are] to render a verdict in accordance with the evidence and the law. If the juror's disapproval of capital punishment is so strong that it would prevent him or her from being able to perform those two obligations as a juror, then I'm going to let that juror be excused for cause. But the other side of the coin is, if the juror's views are so strongly in favor of capital punishment that he can't perform those two functions, I'm going to excuse him for cause, too. It's a two-edged sword. Both sides are entitled to a jury whose minds are not closed on the question of what punishment should be [imposed] for murder. [The jury] should be able to listen to the evidence and the law and form a verdict based upon that and not some already fixed views on capital punishment. [Transcript, Hearing of August 1, 1990 at p. 57.]

Compare Skipper v. State, 257 Ga. 802 (8) (364 SE2d 835) (1988).

The two prospective jurors at issue here gave conflicting answers to the death-qualification questions, but the court was authorized to conclude that the "final distillation" of their thoughts about the death penalty supported their qualification as jurors. See Spivey v. State, 253 Ga. 187, 197, fn. 3 (319 SE2d 420) (1984). There was no error. Jefferson v. State, 256 Ga. 821 (2) (353 SE2d 468) (1987).

6. The autopsist brought with him to trial 13 photographs he took of the victim's body. Defense counsel did not see any of them until trial. Neither did the prosecutor, apparently. Defense counsel objected to the lack of an opportunity to review the photographs before trial. The objection was overruled. Ultimately, three of these photographs were admitted in evidence. The rest were excluded, on grounds of unnecessary gruesomeness or duplication. In addition, three crime-scene photographs of the victim were admitted, and two excluded. Of the six photographs admitted at trial, the defendant complains on appeal about four of them.

(a) The defendant contends that the autopsist's photographs should have been furnished him prior to trial as "scientific reports" discoverable pursuant to OCGA 17-7-211. This contention was not raised at trial. Moreover, these photographs were not "written scientific reports" discoverable under OCGA 17-7-211. Gosdin v. State, 176 Ga. App. 381 (4) (336 SE2d 261) (1985).

(b) Alternatively, the defendant contends, as he did at trial, that these photographs should have been disclosed to him before trial pursuant to the trial court's pre-trial directive that the state provide defense counsel an opportunity to inspect and test physical evidence. However, even assuming the court's order could be read broadly enough to encompass the photographs at issue, "the enforcement of its directives is a matter committed primarily to the trial court's sound exercise of discretion." Hightower v. State, 259 Ga. 770, 771 (2) (386 SE2d 509) (1989).

When defense counsel pointed out that he had not viewed these photographs before trial, the court asked defense counsel:

What harm have you incurred? You're going to be able to cross-examine this witness with respect to these photographs. Let's assume all [you say] is true, what harm have you incurred in not having seen them until now?

Defense counsel could only answer:

I don't know what harm it's going to be, Judge, but I want to get the objection on the record.

The trial court overruled the objection but offered defense counsel a recess if he wanted one before beginning his cross-examination.

There was no abuse of discretion. Hightower v. State, supra.

(c) The defendant contends one of the crime-scene photographs of the victim's body should have been excluded because it showed two small discs attached to her body, apparently placed there by emergency medical technicians during the resuscitation attempt. He contends the photograph violates the rule established in Brown v. State, 250 Ga. 862 (5) (302 SE2d 347) (1983), forbidding in most cases the use of photographs depicting the victim "after autopsy incisions are made or after the state of the body is changed by authorities. . . ." Id. at 867.

The defendant did not object to the admission of this photograph at trial, on this or any other ground. It is clear, however, that this photograph was not subject to a Brown objection. It was a pre-autopsy photograph, and merely attaching two small discs (the defendant calls them "leads") to the victim's chest area did not meaningfully change the "state" of the body. There was no error.

(d) The defendant contends that two of the autopsist's photographs should have been excluded as duplicative. We note that the trial court reviewed the photographs with an eye toward avoiding duplications and that 12 of the state's 18 photographs of the body were not admitted in evidence. While recognizing that there was of necessity some "overlap," the court determined that the photographs finally selected for admission "don't appear duplicated to me." The record supports the trial court's judgment, and we find no abuse of discretion. Hicks v. State, 256 Ga. 715 (13) (352 SE2d 762) (1987).

7. When the magistrate testified that she had issued a "good behavior warrant" at the victim's request, the state asked her to explain the "purpose" of such a warrant. The defendant objected that she was not "qualified to say what the purpose of the warrant is " The court ruled:

Well, she's the chief magistrate, and she is authorized under the law to issue good behavior warrants, and I'm going to let her testify as to the function under the law that such a warrant performs.

Although the magistrate was not an attorney, the trial court was authorized to conclude that she was qualified by her position and experience to answer the question. See Brown v. State, 245 Ga., supra at (1).

8. After the defense questioned the magistrate about portions of testimony she had given in a previous hearing, the state was entitled to bring out additional relevant portions of the magistrate's prior testimony, Wynes v. State, 182 Ga. 434 (3) (185 SE 711) (1936), notwithstanding the defendant's claim that he was not trying to impeach the witness but "simply trying to refresh [her] memory." Metts v. State, 162 Ga. App. 641 (3) (291 SE2d 405) (1982).

9. During his closing argument, the prosecutor attempted to explain why the identification of exhibits became "tedious" at times:

That is a procedural thing that we are under. And while it distracts from the flow it is absolutely necessary, so that everyone will know, should they review this, or should someone else want to know at some other time what exhibit was what, we will know.

The defendant contends this argument was an impermissible comment on the possibility of appellate review, citing OCGA 17-8-76 (a) and Caldwell v. Mississippi, 472 U. S. 320 (105 SC 2633, 86 LE2d 231) (1985).

In Caldwell v. Mississippi [, supra], the United States Supreme Court held that a death sentence was invalid where a jury imposed it after a prosecutor argued to the jury that, if its sentencing determination was unfair, it could be corrected by an appellate court. Such an argument, the Court reasoned, was misleading as to the nature of appellate review, and might impermissibly tempt the jury to delegate its sentencing responsibility to the appellate court. [Romine v. State, 256 Ga. 521, 532 (350 SE2d 446) (1986).]

Long before Caldwell v. Mississippi, supra, was decided, this court condemned similar arguments. In Prevatte v. State, 233 Ga. 929 (214 SE2d 365) (1975), for example, we reversed the defendant's death sentences because the prosecutor had informed the jury that this court would review the sentence and set it aside if we did not think it warranted. Such arguments, we held, "encourage the jury to attach diminished consequence to [its] verdict, and to take less than full responsibility for [the] awesome task of determining life or death. . . ." Id. at 931.

10. The defendant's request to charge number 7 was adapted from our suggested charge on the b (7) aggravating circumstance set out in an Appendix to West v. State, 252 Ga. 156 (313 SE2d 67) (1984). The defendant's requested charge, however, contained additional language, such as: "You are cautioned that all murders are horrible." The trial court declined to give the requested instruction, but gave instead a charge on the b (7) circumstance that was more nearly verbatim to the suggested charge in West. There was no error. Parker v. State, 256 Ga. 543 (11) (350 SE2d 570) (1986).

11. The court declined to give the defendant's requested charge on residual doubt, but observed that the defense could argue residual doubt as a mitigating circumstance. There was no error. Moon v. State, 258 Ga., supra at 759-760 (33). It is well settled that a trial court is not required in its charge to "identify mitigating circumstances offered by the defendant." Davis v. State, 255 Ga. 598, 612 (22) (340 SE2d 869) (1986).

12. The trial court did not err by failing to deliver the defendant's requested charges 14 and 15. The former essentially was covered by the charge the court did give, see Pruitt v. State, 258 Ga. 583, 588 (13) (373 SE2d 192) (1988), and the latter was unnecessary absent any request by the jury for instruction on the subject of parole. Quick v. State, 256 Ga. 780, 787 (9) (353 SE2d 497) (1987).

13. The jury found as a statutory aggravating circumstance that the offense of murder was "outrageously vile, horrible, inhuman in that it involved torture and aggravated battery to the victim." See OCGA 17-10-30 (b) (7). The defendant contends that the evidence does not support this finding, that the b (7) aggravating circumstance is unconstitutionally vague and overbroad, that the disjunctive language of the statute allows non-unanimous verdicts, and that in any event his death sentence is excessive and disproportionate to sentences imposed in similar cases.

(a) The defendant contends the wording of the b (7) aggravating circumstance does not sufficiently channel and limit the sentencer's discretion to impose the death sentence. See, e.g., Maynard v. Cartwright, 486 U. S. 356 (108 SC 1853, 1858, 100 LE2d 372) (1988). As we have recognized:

"a [death-penalty] system 'could have standards so vague that they would fail adequately to channel the sentencing decision pattern of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman [v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972)] could occur.' [Cit.] To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, [462] U. S. [862] (103 SC 2733, 77 LE2d 235) (1983). [Davis v. State, 255 Ga. 588, 594 (340 SE2d 862) (1986).]

Hence, we have not only provided a limiting construction of the b (7) circumstance, see Hance v. State, 245 Ga. 856 (3) (268 SE2d 339) (1980), we have provided a suggested jury instruction incorporating the limiting construction delineated in Hance. See West v. State, 252 Ga. 156, 161-162 (313 SE2d 67) (1984). The instruction suggested in West was delivered by the trial court to the jury in this case.

We are satisfied that our construction of the b (7) circumstance sufficiently channels and limits the sentencer's discretion, and that the b (7) circumstance is not unconstitutionally vague or overbroad as applied. Compare Shell v. Mississippi, 498 U. S. ---- (111 SC 313, 112 LE2d 1) (1990).

(b) There was no possible lack of unanimity in the jury's b (7) finding, because it was stated in the conjunctive, not the disjunctive. Holiday v. State, 258 Ga. 393 (19 b) (369 SE2d 241) (1988).

(c) The defendant contends the evidence does not support the jury's b (7) finding. He contends there was no aggravated battery other than that which killed the victim, and no intentional torture. He compares this case to such cases as Phillips v. State, 250 Ga. 336 (6 a) (297 SE2d 217) (1982) and Whittington v. State, 252 Ga. 168 (313 SE2d 73) (1984), in which we found the evidence insufficient to support a finding of the b (7) circumstance.

Phillips went to the school where his wife worked, fired his gun four or five times in rapid succession, and left. We compared the facts of Phillips' case to cases in which the defendant had inflicted multiple wounds in a deliberate attempt to inflict serious physical abuse before death. We concluded that no such deliberate attempt had occurred in the Phillips case and that "where the defendant kills his victim by four or five shots in rapid succession, no other facts appearing, he has not tortured the victim. . . ." Phillips, supra at 342.

Theresa Whittington murdered the wife of the man with whom she was in love, at his behest. He gave Whittington a gun and sent her into the victim's house to kill her. Whittington fired one shot and ran out of the house. The victim was still alive, and the husband ordered Whittington back inside to "get it over with." Whittington reentered the house and shot the victim once more, this time killing her. We held that the evidence failed to support a finding of intentional torture.

In this case, after being warned to stay away from his wife, the defendant entered her apartment, locked the doors, and viciously attacked his wife with a knife, cutting her five times in her face, once on her hand, another six times in her chest and back (one of these wounds was deep enough to penetrate her left lung and was potentially fatal), and slashing her throat at least seven times so deeply as to nearly decapitate her.

This case is not similar to Phillips or Whittington. The evidence here supports a finding that the defendant "inflicted deliberate, offensive and prolonged pain on his victim prior to death," Phillips, supra at 341, and that the defendant deliberately and needlessly mutilated the victim. The jury was authorized to conclude from the evidence that the offense of murder involved the commission of torture and aggravated battery. 3 Hall v. State, 259 Ga. 412 (383 SE2d 128) (1989); Hicks v. State, 256 Ga. 715 (352 SE2d 762) (1987). The evidence, viewed in the light most favorable to the state, supports the jury's b (7) finding beyond a reasonable doubt. OCGA 17-10-35 (c) (2).

(d) We do not find that Taylor's death sentence is either excessive or disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA 17-10-35 (c) (3). The similar cases listed in the Appendix support the death sentence in this case.

14. It is not error to tell the jury that a death sentence will not be imposed unless the jury "recommends the death sentence in its verdict." The instructions given clearly informed the jury its recommendation would be binding. Isaacs v. State, 259 Ga. 717 (43 h) (386 SE2d 316) (1989).

15. During its instructions to the jury at the sentencing phase, the trial court stated that the b (7) aggravating circumstance contended by the state was the "only statutory aggravating circumstance that the evidence justifies or authorizes you to consider." Although the defendant conceded at trial that the court's use of the word "justifies" instead of "authorizes" was a slip of the tongue, he now contends the charge was harmful error because it implied that if the jury found the b (7) circumstance the death penalty automatically should be imposed. However, not only did the judge recognize his slip of the tongue immediately and attempt to correct it in the same sentence in which it occurred, but he then completely restated the sentence using the word "authorizes" and omitting the word "justifies." The "palpable" slip of the tongue could not have "misled or confused the jury." Gober v. State, 247 Ga. 652 (3) (278 SE2d 386) (1981). There was no reversible error.

16. We do not find that Taylor's sentence of death was imposed as the result of impermissible passion or prejudice or any other arbitrary factor. OCGA 17-10-35 (c) (1). The defendant's conviction and death sentence are affirmed.

APPENDIX.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Deborah M. Perlis, Assistant District Attorneys, Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, for appellee.

1  The crime occurred on January 12, 1989. The defendant was arrested the same day. After the original indictment was quashed, Taylor was re-indicted on May 14, 1990. The trial began September 24, 1990. The jury reached its verdict as to sentence on September 28, 1990. The court issued its written sentence, in accordance with the jury's verdict, on October 1, 1990. No motion for new trial was filed. The case was docketed in this court November 30, 1990. The case was argued orally on February 11, 1991.

2  Since there was no objection at trial, we need not decide whether a party is precluded from calling the "court's" witness as its own or whether, if the party does so, the court must

3  The offense of aggravated battery is committed when the defendant "maliciously causes bodily harm to another . . . by seriously disfiguring his body OCGA 16-5-24 (a).

Keith Brian Taylor killed his wife on January 12, 1989, by stabbing and slashing her with a knife. A jury convicted him of murder and recommended a death sentence, and this Court affirmed the conviction and sentence. Taylor v. State, 261 Ga. 287 (404 SE2d 255) (1991). The United States Supreme Court denied certiorari. Taylor v. Georgia, 505 U. S. 947 (112 SC 393, 116 LE2d 343) (1991). Taylor filed a petition for a writ of habeas corpus on December 20, 1995, and amended the petition on November 21, 1997. After an evidentiary hearing, the habeas court granted the writ and vacated Taylor's conviction and sentence due to ineffective assistance of counsel. The warden appeals this decision. We affirm.

Claims That Are Barred

Claims That Are Defaulted

2. The failure to raise an issue on direct appeal that could have been raised at that time defaults that issue on habeas corpus, unless the habeas petitioner can meet the cause and prejudice test.

[A] failure to make timely objection to any alleged error or deficiency or to pursue the same on appeal ordinarily will preclude review by writ of habeas corpus. However, an otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there shall be a showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.

Ineffective Assistance of Counsel

3. Taylor's claim of ineffective assistance of counsel is neither barred nor defaulted because such claim need not be raised until trial counsel no longer represents the defendant. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991). Taylor's trial counsel represented him through his direct appeal and new counsel began representing him on habeas corpus after trial counsel ceased their representation. Since ineffective assistance of trial counsel was raised at the first available opportunity after new counsel came onto the case, it remains a viable claim on habeas corpus. See id.

In order to prevail on a claim of ineffective assistance of counsel, Taylor must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). To show deficient performance, he must demonstrate that trial counsel's performance was not reasonable under the circumstances confronting them before and during the trial, without resorting to hindsight. Strickland, supra at 689-690; Smith, supra. Taylor's burden is high because trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra at 690. To show actual prejudice, Taylor must demonstrate 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, supra. A claim of ineffective assistance is a mixed question of law and fact. Strickland, supra at 698; Lajara v. State, 263 Ga. 438 (3) (435 SE2d 600) (1993). On appeal, we accept the habeas court's factual findings unless clearly erroneous, but we independently apply the relevant legal principles to the facts. Linares v. State, 266 Ga. 812 (2) (471 SE2d 208) (1996).

The circumstances of the homicide clearly show that Taylor killed his wife, Lori Taylor. See Taylor, 261 Ga. at 287-288. After Lori took out a "good behavior" warrant to have him removed from their apartment, Taylor and his wife were alone in the apartment. From outside, Lori's cousin heard her say, "Keith, don't do it." A police officer knocked on the apartment door a few minutes later and Taylor answered "dripping" with blood. Taylor said, "take me to jail" and he was placed in a patrol car. Lori was found lying on the floor dying from multiple stab and slash wounds. A bloody knife, identified by Taylor's son as belonging to Taylor, was found hidden inside a closet.

Taylor has a long history of mental illness that trial counsel attempted to use in his defense in both phases of his trial. The State countered with evidence that Taylor may have been malingering by exaggerating his mental problems. In the final order vacating Taylor's conviction and sentence, the habeas court identified several areas where trial counsel was ineffective. Before these areas can be discussed, it is necessary for us to recite Taylor's background, the circumstances leading up to trial, and the evidence presented at trial.

Taylor's Background

Trial counsel subpoenaed records from the many hospitals that had treated Taylor and they spoke with Taylor and his mother. In addition to the diagnoses and treatments, the records contained a family and work history. Based on these sources, trial counsel knew the following: Taylor was born in 1954 and raised in Miami as one of ten children. He has one brother who is schizophrenic and a sister who is mentally retarded. His school history shows some difficulties and expulsions, but he managed to obtain a high school diploma and attend some college classes. He was married three times, but none of the marriages lasted. In 1975, he enlisted in the Army and was trained as a computer operator. In 1977, he married Lori Taylor and they had two children. He reached the rank of staff sergeant, but in 1980 his military career began to deteriorate. The records reveal a nervous breakdown in 1980 that resulted in extended treatment in a mental hospital. The diagnosis from this hospitalization was adjustment disorder. The records also note paranoia and substance abuse. Also, he was twice treated at mental hospitals while stationed in Germany in 1983 and 1984. Much of his paranoia centered around his wife, who he said he did not trust; he was also upset about her conversion to the Jehovah's Witness faith. He was discharged from the Army in 1984.

After his discharge, Taylor continued to have significant mental health problems and he was repeatedly treated for these problems. Diagnoses included chronic paranoia, mixed personality disorder, depression, substance abuse, suicidal ideation, and schizophrenia. He was frequently treated with anti-psychotic medications such as Haldol and Mellaril. There are also indications in some of the reports that he may be a malingerer. The extent of his paranoia is documented in a report by a psychologist, Dr. Eaton, who evaluated Taylor in April 1987. Dr. Eaton wrote that Taylor spent much of his time "thinking about a conspiracy which he believes has been launched against him." He used to shoot pool, but no longer did this "because he fears someone involved with a conspiracy will shoot him." He was not working, had marital problems, and "fears and mistrusts everyone and consequently has no friends." He spent most of his time at home, inside his house. Lori Taylor told Dr. Eaton that Taylor was extremely jealous and had been for some time. She reported that he accused her of being in strange cars when she had been at work. She also confirmed that Taylor believed that a number of people were conspiring against him. Dr. Eaton further indicated that Taylor was paranoid in his belief that his wife had been unfaithful to him, and that he believed that his in-laws, the city of Blackshear (for whom he had worked for three months), and his wife's church were plotting to kill him. Dr. Eaton diagnosed Taylor with chronic paranoid schizophrenia. He also noted that Taylor appeared to be "manipulative, self-serving, and capricious."

Taylor was periodically treated on an out-patient basis at the Satilla Mental Health Clinic from 1987 to 1989 and diagnoses included paranoid schizophrenia; his conspiracy theories involving his wife and in-laws were also noted. He was treated with Haldol and Mellaril. In August 1988, Taylor was hospitalized at the Georgia Regional Hospital in Savannah due to suicidal thoughts and threats to neighbors. He was diagnosed with a mixed personality disorder and also suspected of malingering. His paranoia regarding his wife, that he suspected her of seeing other men, was noted. He was discharged with a prescription for Haldol. At this time Taylor was separated from his wife, who had removed his name from the lease on their Blackshear apartment and had the locks changed. In October 1988, Taylor was admitted to the VA hospital in Miami for ten days due to depression and a fear he may hurt himself. A psychiatrist noted his long history of mental problems dating back to the early 1980s, but also stated in a report that Taylor appeared to exaggerate his symptoms to gain attention. He was diagnosed with substance abuse and dependent personality disorder.

The Circumstances Before Trial

Attorneys Kenneth Futch and Jimmy Boatright were appointed to represent Taylor. They testified at the habeas evidentiary hearing that Taylor was sometimes lucid and helpful and sometimes uncooperative. Taylor told them he thought his wife had been cheating on him and that others were part of a conspiracy against him. Taylor frequently only wanted to discuss the various conspiracies against him and he would not provide an account of the events during the killing. Trial counsel decided, based on the circumstances of the crime and Taylor's history, that a mental health defense in both phases of the trial would be their best strategy. Taylor was able to provide the names of many of the hospitals and doctors that had earlier treated him and trial counsel subpoenaed records from them.

A letter Taylor wrote to Futch in March 1989 is indicative of his mental state in jail shortly after the killing. He wrote that it had been three weeks since he had been to the Satilla Mental Health Clinic and he believed that he was in need of more mental health treatment. He said that his medication had run out and the jailers were reluctant to take him for more treatment. He claimed to be suffering from uncontrollable crying and shaking, bad dreams, and headaches. He believed that Lori's father was making payoffs to the jail personnel to "get to me" and that "they want me to commit suicide." He asked Futch for help in getting more treatment.

The trial court ordered a competency evaluation and Taylor was evaluated by Dr. D'Alessandro in July 1989. Dr. D'Alessandro administered several tests to Taylor and found him to be competent and "free from any major psychiatric disorder of either mood or thought." Dr. D'Alessandro found that drug and alcohol abuse were Taylor's major problems and noted that possible malingering was reported in some of Taylor's previous evaluations.

Trial counsel testified before the habeas corpus court that Taylor's paranoia and conspiracy beliefs increased as the trial approached. He became less and less cooperative. In 1990, trial counsel hired an investigator to help with Taylor's case. The investigator testified that he met with Taylor several times before trial and each time Taylor acted bizarre. Taylor kept telling the investigator that the furniture in his apartment had been moved "to confuse him." When the investigator tried to tell Taylor that this information had no bearing on the case, Taylor simply repeated this belief and would talk about nothing else.

Trial counsel hired a psychologist to independently evaluate Taylor. After reviewing Taylor's past medical records, the psychologist, Dr. Fisher, tried to evaluate Taylor on July 16, 1990. Taylor refused to say anything for at least the first 15 minutes of their meeting and he repeatedly cried during the interview. He described a conspiracy against him by the city of Blackshear and his father-in-law to split up Taylor and his wife and then to have him killed. He stated that his attorneys were now a part of the conspiracy as well as Dr. Fisher. He refused to take any psychological tests. Dr. Fisher wrote trial counsel and summarized Taylor's mental health history. He indicated that he was unable to administer testing to Taylor because Taylor believed that his attorneys and Dr. Fisher were part of a conspiracy against him. Dr. Fisher opined that Taylor was not malingering. He concurred with past evaluators who found Taylor's paranoia to be a chronic condition, and he further stated that Taylor's paranoid thought disorder was progressively deteriorating. He warned that Taylor's paranoia was making him unable to work cooperatively with his lawyers or his psychologist. He also wrote, "It is my understanding that he is not on medication, and consequently it is the opinion of this evaluator that this condition will continue, with rejection of nearly everyone around him as being involved in a conspiracy, until treatment is forthcoming." Boatright testified at the habeas corpus hearing that by this time Taylor's paranoia had reached a level where he often refused to communicate with trial counsel during court proceedings. Handwritten notes made by Futch on July 17, 1990, show that trial counsel considered making a motion to have medication administered to Taylor, but no such motion was made.

Dr. Fisher tried to evaluate Taylor again on August 30, 1990, with similar results. He wrote trial counsel that Taylor "is a paranoid schizophrenic whose condition is getting worse." Taylor still refused to participate in any testing because of his belief in a conspiracy involving Dr. Fisher and his lawyers, who he saw as part of the "evil spirits" working to do him in. Dr. Fisher warned trial counsel that there were two problems associated with Taylor's deteriorating condition. One was that the jailers were bound to testify that Taylor, without being on medication, interacts with other inmates by playing basketball and chess and a jury would likely believe that this indicates a lack of mental illness. The second problem was that Taylor had submitted to testing conducted by the State's psychologist, Dr. D'Alessandro, the previous year when he would not now cooperate with his own expert. In other words, the State expert will be able to opine about a lack of mental illness revealed by testing, and Dr. Fisher will be forced to concede that he conducted no testing on the defendant. Dr. Fisher stated that these problems would make convincing the jury that Taylor is a paranoid schizophrenic very difficult. Dr. Fisher continued, "My hope is that as his trial nears, he will somehow become more compliant to testing on my part in order that we can get some material to contradict what the State's psychologists may well have." Dr. Fisher ventured that Taylor's condition could further deteriorate before trial or he might improve "if he is able to recognize the seriousness and complexity of his situation." The case proceeded to trial.

The Competency and Criminal Trials

A competency trial was scheduled before Taylor's criminal trial to determine whether Taylor was mentally fit to stand trial. The competency trial began on September 24, 1990. It was immediately apparent that the real question before the jury was whether Taylor was genuinely mentally ill or malingering. Dr. Fisher testified that Taylor was a paranoid schizophrenic and related his conspiracy beliefs and his ten-year history of mental problems. He opined that Taylor was not malingering. On cross-examination, he explained that it was possible for a schizophrenic to play basketball with other inmates and he conceded some old reports indicated substance abuse and possible malingering. The defendant was to be the next witness and he refused to take the stand. The State then presented its case. Two jailers testified that Taylor's behavior in jail was not unusual and that he interacted well with other inmates, including playing chess and basketball with them. One jailer conceded that he took Taylor to a mental health facility one time. Dr. D'Alessandro then testified that he had tested Taylor in July 1989 and in his opinion Taylor was competent to be tried and not a paranoid schizophrenic. He said that he had not heard of Taylor having any mental health problems while in jail, and that basketball and chess were not activities typically engaged in by paranoid schizophrenics. On cross-examination, he conceded that Taylor had been prescribed Haldol in 1988 and that Haldol was a major anti-psychotic drug. However, he averred that when he evaluated Taylor in July 1989 he was not aware of Taylor being on any psychotropic medication at that time. During closing argument, the State argued that Taylor was a malingerer and that Dr. Fisher's failure to test Taylor meant he could not accurately diagnose him. The State conceded that Taylor had been on Haldol in the past, but argued that there was no indication that Taylor was on Haldol now. If Taylor was truly a paranoid schizophrenic, the prosecutor argued, then trial counsel would have made arrangements to have Taylor properly medicated. The jury found Taylor competent to stand trial.

The criminal trial followed the competency trial. Whether Taylor was mentally ill or malingering remained the key point of contention. After the State rested in the guilt-innocence phase, the defendant testified. Taylor cried frequently and testified about the various hospitals and clinics that had treated him for "problems." He did not know what happened in the apartment when his wife was killed; he said he was looking for "somebody" in his house and he answered the door when the police officer knocked. He knew something was wrong because there was blood on his hands. He testified that his sofa had been moved as part of a conspiracy and that lots of people in Blackshear were involved in the conspiracy. On cross-examination, he admitted to playing chess and basketball in jail, but said he "feels like it is a trap" when he speaks to people. He said he often forgets things, that prospective employers would not hire him because they prejudged him, that the Army conspired against him, and that he was "tricked" into moving to Blackshear.

Dr. Eaton next testified that he diagnosed Taylor with chronic paranoid schizophrenia in 1987, and that he had noted Taylor's conspiracy beliefs. He also testified that Taylor was manipulative and self-serving. Lonzie Webster, a counselor at the Satilla Mental Health Clinic, counseled Taylor on several occasions in 1987 and he testified that he believed Taylor was a paranoid schizophrenic with a mixed personality disorder. He reported that Taylor had been depressed and that his intellectual functioning had seemed low. The chaplain at the Satilla Mental Health Clinic testified that Taylor complained of visions and hearing voices in 1988, and that Taylor believed that his in-laws were trying to kill him. The chaplain also believed that Taylor was a paranoid schizophrenic, but noted that he was stable in September 1988 when he was on Haldol. Dr. Fisher then testified about his two evaluations of Taylor in 1990 and opined that Taylor was a paranoid schizophrenic who was too paranoid to submit to testing. He discussed Taylor's long history of mental illness and that, while not currently on medication, Taylor had been frequently prescribed anti-psychotic drugs like Haldol in the past. On cross-examination, he claimed that Taylor was not malingering, but admitted that Taylor had refused to take any psychological tests. He also stated that Taylor's ability to play basketball in jail was irrelevant to his diagnosis of paranoid schizophrenia. Dr. Sharma, a psychiatrist who had worked at the Satilla Mental Health Clinic, saw Taylor periodically from 1987 to 1989. She testified that Taylor displayed symptoms such as crying, headaches, depression, and substance abuse. She testified that Taylor was paranoid and she had often prescribed Mellaril, an anti-psychotic drug. She last saw him in February 1989, shortly after his arrest, and diagnosed him with having a paranoid, schizoid personality, being substance abusive, and having borderline intellectual functioning. She prescribed Haldol. She did not diagnose paranoid schizophrenia, but considered it. On cross-examination, she admitted that she had earlier noted that Taylor "wants to use mental illness to keep from facing responsibility when he gets into trouble."

On rebuttal, the State presented Dr. Martin, the jail doctor, who testified that he observed no behavior by Taylor that was out of the ordinary. He could not recall whether he or any other doctor had prescribed psychotropic drugs to Taylor. He said he saw the defendant ten to twelve times for only such things as sinus and teeth problems; he also denied that anyone at the jail had ever asked him to examine Taylor for a psychological problem. Dr. D'Alessandro then testified about his July 1989 evaluation of Taylor, and said that he uncovered no major psychiatric disorders, delusions, or hallucinations. He stated that if Taylor was actually an unmedicated paranoid schizophrenic, he would find it hard to engage in activities with other people, like basketball. Trial counsel in closing argument asserted that Taylor was a paranoid schizophrenic with a long history of mental illness. The prosecutor in closing argued that Taylor was a malingerer who was not currently on medication for schizophrenia so the jury could conclude that he behaves normally when not abusing alcohol and illegal drugs. He said Taylor was trying to trick the jury and that the only appropriate verdict was guilty since Taylor was not insane or mentally ill. The jury convicted Taylor of malice murder.

In the sentencing phase, the State presented no additional evidence and the defense presented two witnesses. Dr. Fisher testified that Taylor would function well in prison if properly medicated 1 and he would not be dangerous. Taylor's mother testified about Taylor's background and said he was not violent; she asked for mercy. The defense argued in closing that Taylor had no violence in his background and that a death sentence would not benefit anyone. The jury recommended the death penalty.

Deficient Performance

The habeas court found several areas where trial counsel's performance was deficient, but we will focus on only two deficiencies: (1) trial counsel's failure to ensure that Taylor was properly medicated before his trials so that he could assist in his defense and (2) trial counsel's failure to obtain the Pierce County Jail records which would have contradicted the testimony of the jail doctor and the jailers. We find that the habeas court's factual determinations regarding these deficiencies were not clearly erroneous. See Strickland, 466 U. S. at 698; Linares, 266 Ga. at 813 (2).

(1) Failure to ensure that Taylor was properly medicated. The habeas court found trial counsel deficient for failure to ensure that Taylor was properly medicated before trial so that he could assist in his defense. Trial counsel was aware of Taylor's long history of mental illness and that he had been repeatedly treated with anti-psychotic drugs. Trial counsel also knew that Taylor's paranoia was increasing and that he began to consider trial counsel as part of the conspiracy arrayed against him. He was increasingly uncooperative and trial counsel knew that he was no longer being medicated for his mental illness. Taylor had written Futch as early as March 1989 that he needed more mental health treatment and that his medication had expired, but trial counsel took no action. The investigator hired in 1990 also reported that Taylor's behavior was bizarre and uncooperative. Most important, however, were the repeated warnings by Dr. Fisher that Taylor's paranoid schizophrenia was not being treated, his mental condition was deteriorating, and the lack of medication made him refuse to take psychological tests or otherwise cooperate with the doctor. 2

Moreover, Dr Fisher warned trial counsel of the ramifications at trial of Taylor's refusal to cooperate with the psychologist. As predicted by Dr. Fisher, the State argued that Taylor's refusal to take tests for Dr. Fisher made Dr. Fisher's diagnosis less reliable than the diagnosis of its expert. Also as predicted by Dr. Fisher, the prosecutor argued that Taylor's apparent ability to interact with other inmates while unmedicated meant that he was a malingerer and not a schizophrenic. The State further argued at trial that Taylor could not be genuinely sick or Dr. Fisher or trial counsel would have ensured that he receive medicine while in jail.

The test for determining whether trial counsel's performance was deficient is whether a reasonable lawyer could have acted, under the same circumstances, as defense counsel acted before and during the trial. Turpin v. Lipham, 270 Ga. 208, 217 (510 SE2d 32) (1998); Henry v. State, 269 Ga. 851 (5) (b) (507 SE2d 419) (1998). Hindsight is not employed, and our purpose in making this determination "is not to grade trial counsel's performance, but simply to ensure that the adversarial process at trial worked adequately." Lipham, supra. "We are therefore highly deferential to the choices made by trial counsel during a trial that are 'arguably dictated by a reasonable trial strategy.' " Id. at 218, quoting Devier v. Zant, 3 F3d 1445, 1450 (11th Cir. 1993).

During the habeas corpus hearing, however, trial counsel conceded that they had no strategic reason for failing to ensure that Taylor was medicated so that he could cooperate with them and Dr. Fisher. Despite their knowledge of Taylor's conspiracy beliefs and Dr. Fisher's repeated warnings about his inability to properly evaluate Taylor unless his condition improved, trial counsel did not seek to have him examined by a medical doctor and they did not pursue treatment for Taylor. They failed to respond despite knowing that he was not on the anti-psychotic medication with which he had been treated in the past, that his paranoid condition was deteriorating, and that, as warned by Dr. Fisher, Taylor's inability to cooperate would hurt them at trial. We conclude that the habeas court did not err by finding that trial counsel's performance was deficient due to the failure to adequately prepare their client for trial. In effect, trial counsel chose a strategy centered around their ability to convince the jury that their client was a paranoid schizophrenic and not a malingerer, but they proceeded to trial without taking the necessary action to prevent this strategy from being seriously impaired by Taylor's non-cooperation. No reasonable lawyer would have knowingly proceeded in this manner. See Turpin v. Bennett, 270 Ga. 584, 590 (513 SE2d 478) (1999). Trial counsel's failure to seek medication and treatment for their client before trial was deficient performance. See Strickland, 466 U. S. at 689-691.

(2) Failure to obtain the Pierce County Jail records. The habeas court found that trial counsel was deficient in failing to obtain Taylor's records from the Pierce County Jail which would have refuted the testimony of State witnesses and would have supported the credibility of Taylor's mental illness. With regard to the key point of contention at the trials, whether Taylor was mentally ill or a malingerer, Taylor's behavior in jail after the homicide and leading up to the trials was important evidence. Dr. Fisher had warned trial counsel of this and that jailers were bound to testify that Taylor had seemed normal in jail. Trial counsel was also aware that Taylor was having mental problems in jail from Taylor's letter to Futch in March 1989. But they made no effort to obtain the jail records.

As predicted by Dr. Fisher, two jailers testified at the competency trial that Taylor exhibited no unusual behavior in jail and that he interacted well with other inmates by playing basketball and chess. One of the jailers admitted that he took Taylor for mental health treatment once, presumably the visit to see Dr. Sharma at the Satilla Mental Health Clinic in February 1989, but this information was not followed up with by trial counsel. Dr. D'Alessandro then testified that he was unaware of any mental health problems experienced by Taylor while in jail. Similar testimony was presented by the State in the criminal trial. Dr. Martin, the jail doctor, testified that he observed no behavior by Taylor out of the ordinary and that he saw Taylor about a dozen times for only such ailments as teeth and sinus problems. He stated that he had never been asked by anyone to evaluate Taylor for a psychological problem. He could not remember if he or any other doctor had prescribed psychotropic drugs for Taylor while in jail. The picture presented by State witnesses was that Taylor was an average inmate who did not display any symptoms of mental illness.

The Pierce County Jail records later obtained by habeas counsel show a different picture. Contrary to the testimony of the jailers and Dr. Martin, the records show repeated complaints by Taylor of headaches, stomachaches, uncontrollable crying and shaking, suicidal ideation, difficulty sleeping, bad dreams, "abnormal feelings," and "emotional stress disorder." The records show that Dr. Martin noted that Taylor was depressed and that he prescribed anti-depressant drugs for him. Although he could not recall at Taylor's criminal trial whether he had prescribed psychotropic drugs, the jail records show that in 1989 Dr. Martin personally increased Taylor's dosage of Mellaril, a psychotropic drug, and that Taylor was treated with Haldol shortly after his arrest. 3

In jail, Taylor repeatedly requested mental health treatment and Dr. Martin personally made several notations about contacting a mental health facility regarding Taylor, but Dr. Martin made no mention of these requests at Taylor's criminal trial and denied ever being asked to evaluate Taylor for a psychological problem. Dr. Martin testified on habeas corpus that the sheriff decided whether an inmate was transported for mental health treatment but, at the competency trial, the sheriff did not mention Taylor's numerous requests for mental health treatment. In fact, the sheriff testified that Taylor made no unusual complaints. The jail records further show that Taylor cut his wrist in an apparent suicide attempt in April 1989, and that Dr. Martin treated the wound and advised the jailer "to keep [a] close check on [patient]." On one request for medical care form, Taylor wrote to Dr. Martin, "I know I'm going to suffer. I'm experiencing fears that trouble me often. . . . I only know I must stay in pain."

The habeas court found factually that trial counsel "were on notice from their expert that the Petitioner's behavior while incarcerated was likely to be an issue" and that the "jail records could have been obtained with reasonable diligence." The habeas court also found that Taylor's letter to Futch in March 1989 should have put trial counsel on notice that he was having mental problems in jail. With regard to investigating a case, an attorney is not ineffective for failing to follow every evidentiary lead; instead, the "adequacy of the scope of an attorney's investigation is to be judged by the standard of reasonableness." Jefferson v. Zant, 263 Ga. 316, 319 (431 SE2d 110) (1993), quoting Bush v. Singletary, 988 F2d 1082, 1091 (11th Cir. 1993). The failure to conduct a reasonable investigation may constitute deficient performance. See Curry v. Zant, 258 Ga. 527, 530 (371 SE2d 647) (1988). We agree with the habeas court that the failure to obtain the Pierce County Jail records, under these circumstances, was not reasonable. Trial counsel were warned before the trials that the State would claim that Taylor's behavior in jail was normal, but they failed to obtain records that were readily available that would refute this claim. Moreover, they were on notice from Taylor's March 1989 letter to Futch and from their own observations of their client that he was exhibiting symptoms of mental illness while in jail. We conclude that the habeas court did not err by finding that trial counsel's failure to obtain the jail records constituted deficient performance. See Curry, supra; Jefferson, supra.

Actual Prejudice

The habeas court found that there was a reasonable probability that the outcome of Taylor's criminal trial would have been different had trial counsel "performed competently and obtained a medical evaluation and medication for Petitioner." See Strickland, 466 U. S. at 694; Smith, 253 Ga. at 783 (1). The habeas court also found a reasonable probability that the outcome of Taylor's criminal trial would have been different if trial counsel had performed competently and obtained the Pierce County Jail records which would have supported Taylor's claim of mental illness and refuted the claims of State witnesses that Taylor behaved normally in jail. See id. We agree. The key point of contention at Taylor's trials was whether he was a paranoid schizophrenic or a malingerer. The two main arguments advanced by the State to convince the jury that Taylor was not mentally ill was that Dr. D'Alessandro had tested Taylor and found no mental illness while the defense had not tested Taylor, 4 and that Taylor had behaved normally in jail. Trial counsel were aware that the State would make these arguments and their failure to act allowed the State to present its supporting evidence with little or no challenge. Under these circumstances, we conclude that the habeas court did not err by finding actual prejudice. Therefore, we affirm the habeas court's finding of ineffective assistance of trial counsel and its vacation of Taylor's conviction and death sentence.

Troutman Sanders, Robert P. Edwards, Jr., for appellee.

1  There is no evidence in either the habeas or trial records that Taylor was on medication when the homicide occurred.

2  Dr. Fisher testified at both trials that he could not prescribe medication for Taylor because he did not have a medical degree.

3  The jury did learn about the Haldol prescription because Dr. Sharma testified that she prescribed Haldol for Taylor in February 1989. There is no record of Taylor receiving Haldol or Mellaril in jail after March 1989.

4  It can be argued that Dr. Fisher, if able to adequately test Taylor, might not have ultimately diagnosed him as a paranoid schizophrenic or as suffering from another mental illness. However, in addition to Dr. Eaton, Dr. Sharma and the other mental health professionals who found that Taylor was suffering from paranoia and schizophrenia before the homicide, we note that after Taylor arrived at the Georgia Diagnostic and Classification Center under a death sentence he was diagnosed by the prison psychiatrist as a paranoid schizophrenic and treated with anti-psychotic medication.