In the Supreme Court of Georgia

Decided: January 4, 2022

S21A1188. BATES v. THE STATE.

 LAGRUA, Justice.

Appellant Larry Bates was convicted of malice murder and 

other crimes in connection with the shooting death of his neighbor, 

Paul Wilson, and Wilson’s dog. On appeal, Appellant raises four 

enumerations of error alleging ineffective assistance of counsel: (1) 

trial counsel pursued meritless defenses; (2) trial counsel failed to 

file the necessary pre-trial notice to pursue a mental illness defense; 

(3) trial counsel failed to properly subpoena an expert witness; and 

(4) trial counsel failed to object to and rebut the State’s expert 

witness.1 Seeing no reversible error, we affirm.

 1 The shooting occurred on July 2, 2017. In August 2017, a Barrow

County grand jury indicted Appellant for malice murder, felony murder, 

aggravated assault, aggravated cruelty to animals, and two counts of 

possession of a firearm during the commission of a felony. In August 2019, a 

jury found Appellant guilty on all counts. The trial court sentenced Appellant 
2

1. The evidence presented at trial showed that Appellant 

moved into his girlfriend’s home in 2016. A year later, Appellant

began accusing his across-the-street neighbors, Paul and Beth 

Wilson, of allowing their dogs, Scooter and Maggie, to urinate and 

defecate on his lawn. In May 2017, Appellant made numerous calls 

to 911 and code enforcement authorities regarding the Wilsons’ dogs 

and also to report “harassment” from the Wilsons in the form of

staring and gesturing at Appellant. Officers responding to the 911 

and code enforcement calls found no evidence of defecation by the 

dogs, and the Wilsons denied harassing Appellant and allowing 

their dogs to urinate or defecate on Appellant’s lawn. On May 29, in 

the presence of a responding officer and another neighbor, Appellant 

 

to serve life in prison for the malice murder count, five years in prison to run 

consecutive for the aggravated cruelty to animals count, and five years to run 

consecutive on one count of possession of a firearm during the commission of a 

felony. The felony murder count was vacated by operation of law. See Malcolm 

v. State, 263 Ga. 369, 372 (5) (434 SE2d 479) (1993). The remaining counts 

were merged for sentencing purposes. Appellant filed a timely motion for new 

trial on September 13, 2019, which was amended on September 14 and October 

26, 2020. On February 22, 2021, the trial court held an evidentiary hearing on 

the motion for new trial. On April 13, 2021, the trial court denied the motion 

for new trial. Appellant filed a timely notice of appeal to this Court, and the 

case was docketed to this Court’s August 2021 term and submitted for a 

decision on the briefs.
3

and Wilson shook hands and agreed to let “bygones be bygones.”

A month later, Wilson arrived home from work and took the 

dogs out for their nightly walk. Appellant saw Wilson and his dogs 

outside Appellant’s home. Shortly thereafter, Appellant called 911 

and requested an officer to respond to his address because he was 

“fixing to shoot this son of a b**ch” for “letting his dog piss in 

[unintelligible] yard.” While on the phone with the 911 operator, 

Appellant fired numerous shots at Wilson, killing both him and 

Scooter. 

Appellant remained on the phone with the 911 operator until 

officers responded to his home. As seen on the responding officer’s 

bodycam video, the officer handcuffed Appellant in his driveway, 

and while the officer called EMS, Appellant said, “you’re gonna get 

EMS, and if he dies, he dies, he f**king – he let his dog pee out here 

and he told me ‘haha whatever.’” Appellant further stated, “I shot 

him, I shot him, I shot him.”

EMS determined Wilson was deceased, and the medical 

examiner determined that Wilson’s cause of death was internal 
4

injuries from gunshot wounds to the head and torso. The medical 

examiner also determined that Scooter’s cause of death was internal 

injuries from a gunshot wound to the torso.2

Following Appellant’s arrest, he agreed to waive his Miranda3

rights and gave a statement to the police. During his interview, 

Appellant stated he was standing outside his home looking at the 

stars, and Wilson walked by with his dogs. When the dogs reached 

Appellant’s yard, they began urinating. Appellant verbally 

confronted Wilson. Words were exchanged, and Appellant turned 

around to go back into his home. Wilson then said, “that’s what I 

thought, that’s what I thought, motherf**ker.” Appellant then went 

inside his home, grabbed his gun, and “went down there and 

confronted [Wilson],” but Wilson had “walked down the road . . . in 

front of the neighbor’s house.” When Appellant reached him, Wilson

“bowed his chest” and “start[ed] coming at him,” and then Appellant 

shot Wilson.

 2 The medical examiner testified that he is not a trained veterinarian but 

that he performed a very limited autopsy on the dog for bullet retrieval.

3 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
5

Prior to trial, Appellant was evaluated by two psychologists

and one psychiatrist to determine whether he was insane at the time 

of the shooting, whether his “will was overwhelmed by delusions 

associated with [post-traumatic stress disorder (“PTSD”)] to the 

extent he suffered with delusional compulsion at the time of the 

alleged offense,”4 and whether he was presently competent to stand 

trial. The doctors determined that Appellant was not insane at the 

time of the shooting, that he was not suffering from delusional 

compulsion at the time of the shooting, and that he was presently 

competent to stand trial.

At trial, Appellant was represented by two attorneys, Jeffrey 

Sliz and Robert Greenwald. On the morning of trial, trial counsel

and the State entered into a stipulation regarding evidence of 

Appellant’s PTSD diagnosis. The first stipulation was that, 

pursuant to Collins v. State, 306 Ga. 464, 466 (2) (831 SE2d 765)

(2019), and Virger v. State, 305 Ga. 281, 297 (9) (824 SE2d 346) 

 4 As explained further below, the evidence at trial showed that Appellant 

was a combat veteran who was diagnosed with PTSD approximately 10 years 

prior to the shooting.
6

(2019), Appellant’s PTSD diagnosis and all related testimony were 

inadmissible to negate intent or diminish mens rea. The second 

stipulation was that some testimony regarding Appellant’s PTSD 

diagnosis was admissible. Specifically, the parties agreed that Dr. 

Iana Dzagnidze could testify regarding Appellant’s PTSD treatment 

at the United States Department of Veterans Affairs (“VA”) medical 

center and that Appellant’s VA medical records were admissible as 

business records, so long as they were relevant. Additionally, the 

parties stipulated that the three doctors who evaluated Appellant 

prior to trial could testify regarding their assessments of Appellant, 

their interpretations and observations of his mental status, and 

their reports. 

During the State’s case-in-chief, Appellant’s counsel crossexamined several witnesses regarding their knowledge of 

Appellant’s PTSD diagnosis. Specifically, counsel elicited testimony 

from the following people: (1) Appellant’s girlfriend, who testified

that Appellant suffered from PTSD, that he was receiving treatment 

for it, that she occasionally drove him to his appointments at the VA, 
7

and that he was prescribed medication for his symptoms; (2) 

Wilson’s wife, who testified that she “could have” made the 

statement to an officer investigating the shooting that Appellant 

“had PTSD and was crazy”; and (3) a neighbor of Appellant, who 

testified that he and Appellant had discussed Appellant’s PTSD. On 

direct examination, the prosecutor questioned two officers about

whether they had a conversation with Wilson’s wife regarding 

Appellant’s PTSD at the Wilsons’ house after the shooting. One

officer did not remember any such conversation. The other officer 

testified that a conversation did occur, and he told Wilson’s wife that 

he “ha[d] known some people with PTSD and this wasn’t indicative 

of how they would act.” Appellant’s counsel cross-examined this

officer regarding this testimony and elicited an admission from the 

officer that his opinion was based on knowing just one person with 

PTSD.

After the State rested, the defense presented the testimony of 

Louis Rosen. Rosen and Appellant served in the United States Army 

together and were twice deployed to Iraq. Rosen explained there are 
8

no shifts during deployment – “[i]t’s always go, go, go business in 

Iraq. So you may be out on a mission for 36 hours, get back, and then 

36 minutes later have to go back out.” He described this as extremely 

stressful. Rosen also testified that Appellant was injured during his

second deployment and that afterwards, Appellant’s “ability to be 

the one of reason on a constant basis was not the same.” Rosen 

testified that Appellant “used to take it upon himself to calm us 

down. To be like our common grace. And he just was not able to 

really take that role as much anymore because of the stress that he 

was enduring.” After Appellant’s and Rosen’s military discharge in 

2008, they remained in contact, and Rosen testified that Appellant 

had received counseling from the VA, but not often enough. 

After Rosen’s testimony, Appellant’s counsel read stipulated 

portions of Appellant’s VA medical records to the jury. These 

portions included the following: Appellant was first diagnosed with 

PTSD in 2008 prior to his discharge from the Army. After discharge, 

Appellant scheduled an appointment for a mental health 

consultation, but canceled it. A year later, Appellant was referred to 
9

a neuropsychologist. Two years later, in 2011, Appellant had a 

psychiatric consultation with Dr. Dzagnidze during which he was 

identified as suffering from “psychosocial stress.”5 Appellant met the 

criteria for intensive outpatient treatment, but declined weekly 

appointments, preferring to focus on medication management. In 

2014, Appellant met with Dr. Dzagnidze and described symptoms of 

depression and anxiety. A year later, in 2015, Appellant began 

seeing Dr. Dzagnidze on a more regular basis. During one 

appointment, Dr. Dzagnidze discontinued one of Appellant’s 

prescribed medications due to self-described adverse side effects. A 

few months later, Dr. Dzagnidze changed Appellant’s diagnosis from 

PTSD to chronic PTSD. Approximately six months later, in mid2016, Dr. Dzagnidze noted Appellant’s “difficult[ies] getting along 

with people.” A couple months later, Dr. Dzagnidze noted Appellant

had nightmares about combat and deployment. 

In late 2016, Appellant requested a transfer to the VA clinic in 

 5 Dr. Dzagnidze did not testify at trial. As explained in Division 2 (c), 

counsel’s failure to properly subpoena Dr. Dzagnidze is the basis for one of 

Appellant’s ineffective assistance of counsel claims.
10

Lawrenceville, and the internal transfer notes requested a 60-

minute appointment with a therapist, with a note that Appellant 

“needs [a] treatment plan.” A month later, a mental health progress 

note listed: (1) Appellant’s relevant medical conditions as depressive 

disorder and chronic PTSD; (2) Appellant’s “treatment plan 

problems/needs” as symptoms of PTSD and depression, including 

his self-report of stress, isolation, withdrawal, nightmares, 

irritability, agitation, intrusive thoughts, hypervigilance, and 

anxiety; and (3) Appellant’s goal: “I want my symptoms to decrease.”

Approximately a month before the shooting, Appellant spoke with 

Dr. Robert Gerardi at the VA about the issues he was having with 

Wilson and noted that some of the tension may have been his own 

fault. Appellant also reported ongoing nightmares about combat and 

someone trying to shoot him, and asked Dr. Dzagnidze for a renewal

prescription of one of his medications.

After the reading of his medical records, Appellant took the 

stand in his own defense. Regarding his military service, Appellant 

testified he was hit by an improvised explosive device while in Iraq 
11

and diagnosed with a mild traumatic brain injury (“TBI”). He 

further stated that he was diagnosed with PTSD around the time of 

his discharge and sought treatment once he was back in Georgia. 

Appellant also outlined his PTSD symptoms, including nightmares, 

anxiety, and sudden anger, as well as the treatment he received, 

including medication and counseling. His testimony regarding the 

shooting differed slightly from his custodial statement made to law 

enforcement officers after the shooting. Most notably, Appellant 

testified that, prior to retrieving his gun, Wilson physically 

threatened to “whip [Appellant’s] a**,” taunted him, and started 

stretching “like he was fixing to come running at [Appellant].” After 

retrieving his gun, Appellant went outside, Wilson started coming

at Appellant across the yard with his “chest bowed out,” and Scooter 

was jumping and barking at Appellant. Appellant then fired 

multiple shots at Wilson. Appellant testified that he was terrified of 

Wilson because Wilson was physically bigger than Appellant and 

Appellant was suffering from a broken collarbone at the time.

In rebuttal, the State called Dr. Jeremy Gay, one of the
12

psychologists who evaluated Appellant prior to trial. During direct 

examination, the prosecutor questioned Dr. Gay generally about 

PTSD and then inquired whether Appellant appeared to be 

symptomatic on the night of the shooting, to which Dr. Gay 

responded in the negative. The prosecutor then walked Dr. Gay 

through the events of the night and inquired whether Appellant’s 

actions were consistent with someone suffering from PTSD. Dr. Gay 

responded that they were not. During cross-examination, 

Appellant’s counsel elicited the following testimony from Dr. Gay: 

(1) that he only met with Appellant once for two hours; (2) that 

Appellant had been diagnosed with a TBI; (3) that TBI symptoms 

can include mood changes, personality changes, and concentration 

issues, and that these symptoms can be short-term or permanent; 

(4) that chronic PTSD is PTSD that persists six months to a year 

after the traumatic event and therefore becomes a chronic condition; 

(5) that Appellant “probably met [the] criteria for a diagnosis of 

PTSD and major depressive disorder”; (6) that symptoms of PTSD 

can include anxiety, irritability, agitation, intrusive thoughts, anger
13

in the form of hyperarousal, hypervigilance, difficulty getting along 

with people, and distrust of people, like neighbors, and that PTSD

can cause someone to be wary and continually check their 

surroundings; (7) that he had worked with combat veterans 

previously, and that presentation of symptoms related to 

experienced trauma is unique to each individual; and (8) that 

persons suffering from PTSD may present differing symptoms.

2. On appeal, Appellant raises four enumerations of error 

alleging constitutionally ineffective assistance of counsel. To prevail 

on these claims, Appellant must demonstrate that his trial counsel’s 

performance was professionally deficient and that he was prejudiced 

by this deficient performance. See Sullivan v. State, 308 Ga. 508, 

510 (2) (842 SE2d 5) (2020) (citing Strickland v. Washington, 466 U. 

S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984)). To establish 

deficient performance, Appellant must show that trial counsel

performed their duties in an objectively unreasonable way, 

considering all the circumstances and in the light of prevailing 

professional norms. See id. (citation omitted). Establishing deficient 
14

performance

is no easy showing, as the law recognizes a strong 

presumption that counsel performed reasonably, and 

[Appellant] bears the burden of overcoming this 

presumption. To carry this burden, he must show that no 

reasonable lawyer would have done what his lawyer did, 

or would have failed to do what his lawyer did not. In 

particular, decisions regarding trial tactics and strategy 

may form the basis for an ineffectiveness claim only if 

they were so patently unreasonable that no competent 

attorney would have followed such a course.

Vann v. State, 311 Ga. 301, 303 (2) (857 SE2d 677) (2021) (citations 

and punctuation omitted). To establish prejudice, Appellant must 

prove that there is a reasonable probability that, but for his trial 

counsel’s deficiency, the result of the trial would have been different.

See Sullivan, 308 Ga. at 510 (2). “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. 

(citation omitted). And, “‘[t]his burden is a heavy one.’” Keller v. 

State, 308 Ga. 492, 496 (2) (842 SE2d 22) (2020) (quoting Young v. 

State, 305 Ga. 92, 97 (5) (823 SE2d 774) (2019)). “If an appellant fails 

to meet his or her burden of proving either prong of the Strickland

test, the reviewing court does not have to examine the other prong.”
15

Sullivan, 308 Ga. at 510 (2) (citation omitted).

(a) Appellant first contends that his trial counsel rendered 

constitutionally ineffective assistance by relying on Appellant’s 

PTSD diagnosis to argue defenses that are prohibited by law, i.e., to 

negate intent for malice murder, to mitigate intent for voluntary 

manslaughter, and to support self-defense.6 Appellant, citing

Benham v. State, 277 Ga. 516 (591 SE2d 824) (2004), argues that 

trial counsel is constitutionally deficient when counsel argues a 

theory that is not recognized as a lawful defense. In Benham, trial 

counsel proffered a justification defense based on OCGA § 16-3-21 

(use of force in defense of self or others), instead of defense of 

habitation under OCGA § 16-3-23 (1). See Benham, 277 Ga. at 517. 

There, we determined that trial counsel “failed to appreciate that 

the defense of habitation may have justified the use of deadly force 

 6 See Collins, 306 Ga. at 467 (2) (holding that evidence of a defendant’s 

subjective mental condition or mental illness, like PTSD, is not relevant to a 

claim of voluntary manslaughter); Virger, 305 Ga. at 302-303 (9) (c) (concluding 

that this Court has consistently upheld the exclusion of evidence of a 

defendant’s diminished mental condition, like PTSD, when offered to support 

other defenses, like self-defense, or to negate the intent element of a crime) 

(citing Thompson v. State, 295 Ga. 96, 99 (2), n.2 (757 SE2d 846) (2014)).
16

in this case” and “[i]n failing to adequately research and understand 

the defenses available to her client, defense counsel rendered 

assistance that fell below the minimum standard set forth 

in Strickland.” Benham, 277 Ga. at 517-518.

However, contrary to Appellant’s argument, this is not a case 

where trial counsel failed to adequately research and understand 

the defenses available to their client. Here, trial counsel explicitly 

acknowledged in the pre-trial stipulation that evidence of PTSD was 

inadmissible to negate intent, but argued that evidence of PTSD was 

admissible to explain Appellant’s conduct. The State agreed this was 

a permissible purpose. At the motion for new trial hearing, Sliz, one 

of Appellant’s trial attorneys, did acknowledge introducing “as much 

[mental health evidence] as we could get in not calling it PTSD . . . 

hoping to seek from the jury some – some – not nullification, but 

reduction of punishment.” But we cannot say that trial counsel’s 

strategy was objectively unreasonable given that trial counsel

sought and received jury instructions on voluntary manslaughter 

and self-defense. Further, “it cannot be said that no competent 
17

attorney[s] in trial counsel’s position would not have employed the 

same strategy in this case.” Finnissee v. State, 309 Ga. 557, 561 (2)

(847 SE2d 184) (2020). We conclude Appellant has failed to show 

deficient performance under Strickland, and therefore, this

ineffective assistance claim fails.

(b) Appellant next contends that his trial counsel rendered 

constitutionally ineffective assistance by failing to file a pre-trial 

notice under Uniform Superior Court Rule 31.5, which he says 

prevented him from introducing evidence of mental illness. This 

contention fails.

Rule 31.5 requires written, pre-trial notice to the State where 

an accused intends to “raise the issue that [he] was insane, mentally 

ill, or intellectually disabled at the time of the act or acts charged 

against the accused.” Appellant contends that a Rule 31.5 notice 

should have been filed in this case to “facilitate the presentation of 

needed evidence of Appellant’s mental illness at the time of the 

shooting.”

There is no dispute that Appellant actually presented evidence 
18

of his mental illness (i.e., PTSD) and treatment; a recounting of the 

extensive evidence can be found in Division 1 above. In addition, at 

the motion for new trial hearing, Greenwald, one of Appellant’s trial 

attorneys, testified that he did not file a Rule 31.5 notice because 

there was no evidence of insanity. In fact, three doctors found 

Appellant was not insane at the time of the shooting. Appellant’s

citation of McKelvin v. State, 305 Ga. 39, 41 (2) (a) (823 SE2d 729) 

(2019), for the argument that a Rule 31.5 notice is required under 

circumstances such as his is unavailing. In McKelvin, we specifically 

held that the defense of involuntary intoxication is a subset of an 

insanity defense and thus encompassed by Rule 31.5. 305 Ga. at 41 

(2) (a). By contrast, Appellant cites no authority for the proposition 

that PTSD is a subset of insanity. 

We therefore conclude that trial counsel’s decision to forgo a 

Rule 31.5 notice was not objectively unreasonable. See Martinez v. 

State, 284 Ga. 138, 142 (4) (663 SE2d 675) (2008) (“[T]he evidence 

fails to demonstrate that trial counsel’s decision to forego an 

insanity or delusional compulsion defense based upon PTSD was 
19

unreasonable.”). And, the fact that appellate counsel would have 

pursued a different strategy does not render trial counsel’s strategy 

unreasonable. See id. We conclude Appellant has failed to show 

deficient performance under Strickland, and therefore, this 

ineffective assistance claim fails.

(c) Appellant next contends that his trial counsel rendered 

constitutionally ineffective assistance by failing to properly 

subpoena Dr. Dzagnidze.

The record reflects that trial counsel properly subpoenaed Dr. 

Dzagnidze under Georgia law, but failed to properly subpoena Dr. 

Dzagnidze, a VA employee, in compliance with federal Touhy 

regulations7 contained in 38 CFR § 14.800 et seq. These regulations 

govern

[t]he production or disclosure of . . . records of the [VA]; 

and ... [t]he testimony of present or former VA personnel 

relating to any official information acquired by any 

individual as part of that individual’s performance of 

official duties . . . in federal, state, or other legal 

proceedings covered by these regulations.

 7 See United States ex rel Touhy v. Ragen, 340 U. S. 462 (71 SCt 416, 95 

LE 417) (1951). 
20

38 CFR § 14.800. Assuming without deciding that trial counsel’s 

failure to properly subpoena Dr. Dzagnidze under 38 CFR § 14.800 

et seq. was deficient, we turn to whether Appellant has 

demonstrated prejudice.

Appellant contends that if properly subpoenaed, Dr. Dzagnidze 

would have testified that Appellant had been advised to call 911 if 

he experienced any homicidal ideations, which would then allow 

counsel to argue that people suffering from PTSD may have 

homicidal ideations. On the second day of trial, Greenwald stated he 

was unsure of Dr. Dzagnidze’s availability to testify given the VA’s 

general reluctance to allow her to testify under the Touhy 

regulations. Specifically, Greenwald stated the VA would not allow 

Dr. Dzagnidze to be qualified as an expert witness, would not allow 

her to explain PTSD, would not allow her to offer any opinion, and 

would only be able to testify verbatim as to what was contained 

within Appellant’s VA medical records. The next morning, 

Greenwald confirmed the VA would not permit Dr. Dzagnidze to 

testify. However, trial counsel and the State had agreed that trial 
21

counsel could read stipulated portions of the VA medical records to 

the jury. On this issue, Greenwald stated at trial, “The records speak 

for themselves since Dr. Dzagnidze would not be allowed to opine as 

a federal employee what they mean.”

At the motion for new trial hearing, appellate counsel 

presented an affidavit from Dr. Dzagnidze. In the affidavit, Dr. 

Dzagnidze averred that she was subpoenaed to Appellant’s trial but 

was not authorized to provide expert testimony pursuant to the 

Touhy regulations contained in 38 CFR §§ 14.806 and 14.808.8 She 

further averred that she was involved in Appellant’s treatment from 

September 2011 through June 2017 and relayed some of her 

progress notes contained within Appellant’s VA medical records.

Dr. Dzagnidze’s affidavit does not contain a reference to 

homicidal ideations, and therefore, does not support the argument 

that the failure to properly subpoena Dr. Dzagnidze prevented her 

 8 38 CFR § 14.808 (a) provides, in part: “VA personnel shall not provide, 

with or without compensation, opinion or expert testimony in any legal 

proceedings concerning official VA information, subjects or activities, except on 

behalf of the United States or a party represented by the United States 

Department of Justice.”
22

from explaining the connection between Appellant’s psychological 

conditions and any homicidal ideations. Notably, Appellant’s VA 

medical records indicate that he consistently denied homicidal 

ideations.9 Further, Appellant has not demonstrated that Dr. 

Dzagnidze would have been able to even offer such an opinion given 

the relevant Touhy regulations. Thus, Appellant has not shown 

there is a reasonable probability that the result of the trial would 

have been different. See Arnold v. State, 292 Ga. 268, 272 (2) (b) (737 

SE2d 98) (2013) (no prejudice where the defendant did not show

what the result of any additional mental health examination would 

have been, and thus failed to establish prejudice by showing that the 

result of his trial would have been different if such a psychological 

examination was pursued). We therefore conclude that Appellant 

has failed to show prejudice under Strickland, and this ineffective 

assistance claim fails.

(d) Appellant next contends that his trial counsel rendered 

 9 Greenwald testified at the motion for new trial hearing that he decided 

not to read these denials to the jury because he concluded the jury should not 

hear the phrase “homicidal ideations” during a murder trial.
23

constitutionally ineffective assistance by failing to object to and 

rebut the testimony of Dr. Gay. Under this enumeration of error, 

Appellant contends that trial counsel performed deficiently by: (1) 

failing to object to Dr. Gay’s testimony concerning Appellant’s 

mental state at the time of the shooting; (2) failing to rebut Dr. Gay’s 

testimony by calling another psychologist; and (3) failing to object 

when Dr. Gay testified as to the ultimate issue of intent.

Regarding the failure to object to and rebut Dr. Gay’s 

testimony, some background is necessary. At trial, the defense had 

Dr. Todd Antin10 under subpoena. Greenwald testified at the motion 

for new trial that he decided not to call Dr. Antin during the 

defense’s presentation of evidence because Greenwald believed Dr. 

Antin’s testimony would be harmful to Appellant. Appellant had told 

Dr. Antin that he shot Wilson “dead in the heart,” that he felt “blind 

rage,” and that “if he had attempted to shoot [Wilson] anywhere else 

[Wilson] would have continued to harass him.” Greenwald testified

 10 Dr. Antin was the psychiatrist who evaluated Appellant prior to trial 

and determined he was not insane at the time of the shooting, and presently 

that he was mentally competent to stand trial
24

at the motion for new trial hearing that these statements of 

Appellant sounded like premeditation as opposed to reacting to a 

combat-type situation, and therefore, the disadvantages of calling 

Dr. Antin outweighed any potential benefits. However, without Dr. 

Antin, Appellant had no expert witness to explain PTSD and how it 

affected Appellant’s conduct. Greenwald therefore did not object to 

Dr. Gay, as a matter of trial strategy, because he was able to crossexamine him on the characteristics and symptoms of PTSD. 

Greenwald testified this calculation – i.e., the risk of calling Dr. 

Antin outweighing any potential benefit – did not change after Dr. 

Gay testified because trial counsel was able to elicit helpful 

testimony from Dr. Gay about PTSD, TBI, and major depressive 

disorder. Further, trial counsel had already introduced evidence of 

Appellant’s PTSD diagnosis and treatment through the introduction 

of his VA medical records. 

We conclude that, under the circumstances, trial counsel’s 

strategy to use Dr. Gay to explain PTSD and how it affected 

Appellant’s conduct was reasonable. See Brown v. State, 292 Ga. 
25

454, 457 (738 SE2d 591) (2013) (counsel’s strategic decision not to 

continue searching for a defense expert, but instead to challenge the 

State’s experts on cross-examination, while also presenting a robust 

defense to other aspects of the State’s case, was not unreasonable 

and did not constitute deficient performance). And, “[r]easonable 

decisions as to whether to raise a specific objection are ordinarily 

matters of trial strategy and provide no ground for reversal.” Eller 

v. State, 303 Ga. 373, 383-384 (IV) (D) (811 SE2d 299) (2018) 

(citation omitted), overruled in part on other grounds, Lester v. 

State, 310 Ga. 81, 93 (3) (b) (849 SE2d 425) (2020). We conclude that 

Appellant has failed to show deficient performance under Strickland

by failing to object to Dr. Gay, and therefore, this ineffective 

assistance claim fails.

As to Appellant’s claim regarding the failure to rebut Dr. Gay’s 

testimony by calling another psychologist,

the decision whether to present an expert witness, like 

other decisions about which defense witnesses to call, is a 

matter of trial strategy that, if reasonable, will not 

sustain a claim of ineffective assistance. Indeed, for a 

defendant to establish that a strategic decision 
26

constitutes deficient performance, a defendant must show 

that no competent attorney, under similar circumstances, 

would have made it. Moreover, a fair assessment of 

attorney performance requires that every effort be made 

to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel’s 

perspective at the time.

Sullivan, 308 Ga. at 512-513 (citations and punctuation omitted).

At the motion for new trial hearing, Greenwald did not explain 

the potential benefits of calling Dr. Antin, beyond saying that “each 

one of [the three psychologists] had some things to say good about 

the situation that we thought we could use.” We conclude that trial 

counsel’s decision not to call Dr. Antin in rebuttal to Dr. Gay because 

the disadvantages of Dr. Antin’s testimony outweighed any 

potential benefits was not unreasonable. We therefore conclude that 

Appellant failed to show deficient performance under Strickland, 

and this ineffective assistance claim also fails.

Finally, Appellant argues trial counsel was ineffective when he 

failed to object when Dr. Gay testified as to the ultimate issue of 

intent in violation of OCGA § 24-7-704 (b), which states:
27

No expert witness testifying with respect to the mental 

state or condition of an accused in a criminal proceeding 

shall state an opinion or inference as to whether the 

accused did or did not have the mental state or condition 

constituting an element of the crime charged or of a 

defense thereto. Such ultimate issues are matters for the 

trier of fact alone.

At trial, the following colloquy occurred between the prosecutor

and Dr. Gay:

PROSECUTOR: He told law enforcement that he did 

what he told the victim he was going to do when he 

said: I done what I told him. Would that be 

consistent or inconsistent with someone 

experiencing PTSD symptoms?

DR. GAY: I would say that would be inconsistent. 

And that kind of goes back to premeditation and 

intent.

Assuming without deciding that Dr. Gay testified on the 

ultimate issue of intent in violation of OCGA § 24-7-704 (b) and that 

trial counsel was constitutionally deficient for failing to object to this 

portion of Dr. Gay’s testimony, Appellant has failed to carry his 

burden to show prejudice. Given the overwhelming evidence of 

Appellant’s guilt, he has not shown a reasonable probability that the 

result of the trial would have been different if Dr. Gay had not made 
28

the “goes back to premeditation and intent” comment. See Bridges 

v. State, 286 Ga. 535, 540 (5) (690 SE2d 136) (2010) (trial counsel’s 

failure to object to ultimate issue testimony not prejudicial given the 

overwhelming evidence against the appellant). We therefore 

conclude that Appellant failed to show prejudice under Strickland, 

and thus, this ineffective assistance claim fails.

3. Finally, we consider whether the cumulative effect of trial 

counsel’s errors entitles Appellant to a new trial. See Schofield v. 

Holsey, 281 Ga. 809, 811 n.1 (II) (642 SE2d 56) (2007) (“[I]t is the 

prejudice arising from counsel’s errors that is constitutionally 

relevant, not that each individual error by counsel should be 

considered in a vacuum.”) (citation and punctuation omitted), 

overruled on other grounds, State v. Lane, 308 Ga. 10, 23 (1) (838 

SE2d 808) (2020). Here, the cumulative prejudice from any assumed 

deficiencies discussed in Divisions 2 (b) and (d) – the failure to 

properly subpoena Dr. Dzagnidze, and the failure to object to a 

portion of Dr. Gay’s testimony – is insufficient to show a reasonable 

probability that the results of the proceeding would have been 
29

different in the absence of the alleged deficiencies.

Judgment affirmed. All the Justices concur.