Executed November 15, 2011 2:04 p.m. by Lethal Injection in Ohio
40th murderer executed in U.S. in 2011
1274th murderer executed in U.S. since 1976
5th murderer executed in Ohio in 2011
46th murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(40) |
Reginald Brooks B / M / 36 - 66 |
Reginald Brooks Jr. B / M / 17 Vaughn Brooks B / M / 15 Niarchos Brooks B / M / 11 |
Son Son |
Citations:
State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (Ohio 1986). (Direct Appeal)
Brooks v. Bagley, 513 F.3d 618 (6th Cir. 2008). (Habeas)
Final/Special Meal:
Brooks followed the trend of several executed men recently, ordering a large “last meal” that included lasagna, chili-cheese fries, garlic bread, moose-tracks ice cream, chocolate cake, caramel candy, beef jerky, cashews, almonds and root beer.
Final Words:
None, but took the opportunity to give the middle finger on both hands toward the witness area.
Internet Sources:
Ohio Department of Rehabilitation and Correction
Name: Reginald Brooks
Number: 179740
Date of Birth: 3/20/1945
Gender: Male Race: Black
Admission Date: 6/13/84
Date of Offense: 3/6/82
County of Conviction: Cuyahoga
Institution: Southern Ohio Correctional Facility
Executed: 11/15/2011
Received: 11/16/84 MURDER, AGG MURDER ORC: 2903.01
On November 15, 2011, Reginald Brooks was executed for the 1982 aggravated murders of Reginald Brooks, Jr., Vaughn Brooks, and Niarchos Brooks.
Ohio Department of Rehabilitation and Correction (Clemency Report)
IN RE: REGINALD BROOKS, OSP #A179-740
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: OCTOBER 21, 2011
CRIME, CONVICTION: Aggravated Murder with death penalty specifications. (3 Counts)
DATE, PLACE OF CRIME: March 6, 1982 in Cleveland, Ohio
COUNTY: Cuyahoga
CASE NUMBER: CR172340
VICTIM: Reginald Brooks Jr. (age 17), Vaughn Brooks (age 15), and Niarchos Brooks (age 11).
INDICTMENT: Aggravated Murder with death penalty specifications. (3 Counts)
VERDICT: Guilty as charged.
DATE OF SENTENCE: November 30, 1983
SENTENCE: DEATH
ADMITTED TO INSTITUTION: June 13, 1984
JAIL TIME CREDIT: 758 days
TIME SERVED: 27 years, 4 months (does not include JTC)
AGE AT ADMISSION: 39 years old
CURRENT AGE: 66 years old
DATE OF BIRTH: March 20, 1945
JUDGES: Honorable Daniel O. Corrigan, Harry A. Hannah, Stephanie Tubbs Jones.
PROSECUTING ATTORNEY: John T. Corrigan.
"Reginald Brooks executed for murdering his 3 sons," by Joe Guillen. (November 15, 2011 10:20 PM)
LUCASVILLE, Ohio - Reginald Brooks, who killed his three sons while they slept in their East Cleveland home in 1982, showed no remorse and refused to give a final statement before his execution on Tuesday. He sent another message instead. Brooks extended the middle fingers of both hands while they were strapped to the gurney in the execution chamber.
Beverly Brooks, his ex-wife and the mother of the three slain boys, sat behind a glass window about 10 feet away from Brooks. She and the other witnesses could see only his left hand, which remained clenched with the middle finger extended throughout the execution. Brooks, 66, was pronounced dead at 2:04 p.m. - about 20 minutes after the lethal injection was administered at the Southern Ohio Correctional Facility.
Beverly Brooks' sister, Monica Stephens, spoke for the family afterward. "I don't want to use the word closure because we've had to deal with this ever since 1982," Stephens said. "Our nephews are gone and they'll never be replaced. The memories we'll always have. The what-ifs we'll always have. "I wouldn't want to wish what we witnessed today on anyone under any circumstances."
Brooks was executed for fatally shooting his three sons - Reginald Jr., 17, Vaughn, 15, and Niarchos, 11. Beverly Brooks, Stephens and two others who witnessed the execution wore shirts with a portrait of the boys.
Prosecutors said the murders were the culmination of years of tension in the Brooks household that began to surface after Brooks quit his job in 1976, leaving his wife to support the family. She decided to get a divorce in the fall of 1981, according to court records. Weeks before the killings, an argument over schoolwork escalated into a physical altercation between Brooks and two of his sons. Once the boys subdued their father, Brooks was heard telling his eldest son, "you're dead."
On March 6, 1982, two days after being served with divorce papers, Brooks shot and killed his three sons while Beverly Brooks was at work. He bought the gun nine days earlier. Beverly Brooks found her sons' bodies when she got home. She has said Brooks killed the boys to get back at her for the divorce. She said she does not believe mental illness drove Brooks to kill the boys - an argument Brooks' defense lawyers had put forth to appeal the death sentence.
Brooks' lawyers said the killings were related to his paranoid schizophrenia, which caused him to fear that his sons were a threat to him. The execution, originally scheduled for 10 a.m., was delayed for a few hours while two of Brooks' final appeals were reviewed in court. Both were rejected.
Brooks was the oldest inmate executed since 1999. He was the fifth prisoner executed this year and the 46th since 1999, when the state reinstated the death penalty.
Prison officials said there was nothing unusual about Brooks' behavior in his final hours. He visited with a brother and his attorneys Monday evening and ate a special meal of lasagna, garlic bread, moose tracks ice cream, chocolate cake, caramel candy, beef jerky, cashews, almonds and root beer. Brooks slept from about 11 p.m. Monday to about 5:30 a.m. Tuesday, a prisons spokesman said. He did not make any phone calls or write any letters, as some death row inmates do before their executions.
Stephens said Brooks lived on death row for too long. He has been in prison since June 1984. "Something needs to be done about the length of time for a death row inmate to live -- something needs to be done about that," she said.
Less than an hour after the execution, a handful of Ohio lawmakers held a Statehouse news conference to announce legislation that would abolish the death penalty in Ohio and replace it with life imprisonment without parole. Joining them was Sister Helen Prejean, the Louisiana nun whose book "Dead Man Walking" was turned into a 1995 movie. Prejean said Ohioans would support lifelong imprisonment if they believed those convicted would not be paroled. "We can be safe without the killing," she said.
"Triple murderer defiant to end," by Alan Johnson. (Wednesday November 16, 2011 3:54 AM)
LUCASVILLE, Ohio — He took her children nearly 30 years ago, and yesterday, Reginald Brooks tried to strike one final blow at his ex-wife. Brooks, 66, of East Cleveland, raised the middle fingers of both hands as he lay strapped down to the lethal-injection table at the Southern Ohio Correctional Facility near Lucasville. They remained that way for the next 22 minutes — until and after he was declared dead at 2:04 p.m. As Beverly Brooks watched the father — and slayer — of her three sons put to death, she was quiet and dignified, not acknowledging her ex-husband’s vengeful taunt — even though he was at eye level behind glass 10 feet away.
She, two of her sisters and a family friend witnessed the execution. They wore matching white T-shirts with pictures of the three boys: Reginald Jr., 17; Vaughn, 15; and Niarchos, 11. Sitting side by side, their arms linked, the women gasped but said nothing as Brooks first glared at and then “flipped off” his ex-wife with his left hand. He also raised the middle finger of his right hand, but that was visible only to the prison staff. He had no final words.
Brooks was the 46th and oldest Ohioan to be executed since 1999, and the first to be put to death in six months while a court battle raged over Ohio’s lethal-injection protocol.
Later, Monica Stephens, Beverly Brooks’ sister and the slain boys’ aunt, told reporters at the prison that she grew up thinking of them like brothers. “We did everything together, good and bad,” she said. “I don’t really want to use the word closure,” she said of Brooks’ execution. “We’ve been dealing with this every day since 1982. This is another chapter in our lives.” Stephens said “something needs to be done” about the long period between a murder and execution. None of the women mentioned Brooks’ obscene gesture; they declined to answer questions.
The execution was scheduled to take place at 10 a.m., but there were delays triggered by appeals at three levels, including the U.S. Supreme Court. All revolved around claims that Brooks’ mental illness rendered him incompetent to be executed. The argument was rejected by all courts, and the execution began at 1:30?p.m.
The condemned man never admitted that he killed his three sons in their sleep, although the evidence showed there was no doubt about his guilt. He expressed no remorse and offered “ nonsensical theories” about who committed the crime, according to the Ohio Parole Board, which unanimously recommended against clemency. Gov. John Kasich concurred.
Court records showed Brooks began planning the crime about 10 days before the murders. He quietly obtained an advance on his credit card and traveled to North Olmsted to buy a .38-caliber handgun and ammunition. A few days later, his wife filed for divorce. After Beverly Brooks left for work on March 6, 1982, the boys’ father used the gun to kill all three of their sons in their beds. He turned up the stereo so the neighbors wouldn’t hear the gunshots. Brooks then packed the gun in a suitcase, bought a Continental Trailways bus ticket, and left for Las Vegas. He was arrested in Utah with the murder weapon in his luggage.
About 45 minutes after the execution, Sister Helen Prejean, a leading national opponent of the death penalty whose story was featured in the movie Dead Man Walking, joined a gathering of mostly Democratic lawmakers at the Statehouse to urge an end to capital punishment, which she said is costly, unnecessary and unevenly applied. “The states that practiced slavery, the states that lynched the most people, the states that quote the Bible the most are the big executing states,” she said. “I don’t know where Ohio fits in this, but you all are really in there among the top executors in the country.”
Brooks followed the trend of several executed men recently, ordering a large “last meal” that included lasagna, chili-cheese fries, garlic bread, moose-tracks ice cream, chocolate cake, caramel candy, beef jerky, cashews, almonds and root beer.
"Ohio man who killed three sons is executed," by Jim Leckrone. (Tue Nov 15, 2011 3:07pm EST)
COLUMBUS, Ohio (Reuters) - An Ohio man who killed his three sons after his wife served him with divorce papers was executed on Tuesday, becoming the first person put to death in the state since it revised death penalty procedures in September.
Reginald Brooks was convicted of shooting to death each of his three sons, aged 11, 15 and 17, while they were in their beds in East Cleveland in 1982. His wife had served him with divorce papers two days before the killings.
Final appeals were "exhausted" on Tuesday morning, said Rob Nichols, spokesman for Governor John Kasich. Brooks died at 2:04 p.m., according to the Ohio Department of Rehabilitation and Correction. Defense lawyers have argued that Brooks, who spent nearly three decades on death row, was a paranoid schizophrenic and suffered from mental illness before he killed his sons. He was denied clemency by both the Ohio Parole Board and Kasich.
Brooks, 66, was the oldest person put to death since Ohio resumed executions in 1999, according to Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction. For his last meal on Monday evening, Brooks had requested lasagna, garlic bread, ice cream, chocolate cake and root beer, along with almonds, beef jerky and caramel candy, LoParo said.
Brooks was the first person put to death in Ohio since a federal judge delayed the execution of Kenneth Smith in July, and his execution comes after the state issued revised execution procedures in September that it said addressed the judge's concerns. Brooks had claimed that Ohio had made only cosmetic changes and that its death penalty practices may have worsened in the last few months.
With Brooks' execution, Ohio has executed five men in 2011, according to the Death Penalty Information Center. The execution brings to 40 the number of people put to death in the United States so far this year. Oba Chandler, 65, is scheduled to be executed by lethal injection later on Tuesday in Florida for killing a woman and her two daughters who stopped him to ask for directions after visiting Disney World.
On Saturday morning, March 6, 1982, Beverly Brooks left her home in Cleveland, Ohio, to go to work, leaving behind her three sons (17, 15, 11), who were still asleep, and her husband, Reginald, who was awake and upon whom she had served divorce papers two days earlier. At roughly 8:00 a.m., after Beverly had left the house, Reginald shot each of his sons in the head while they were asleep in their beds. By the time Beverly returned home from work that day and discovered her dead children, Brooks had boarded a bus to Las Vegas, Nevada.
On March 8, after tracing the credit card Brooks had used to purchase his bus ticket, police took him into custody in Utah. Although Brooks told the police he was carrying just one piece of luggage, a search of his wallet produced a baggage-claim check for a second suitcase. Inside that suitcase were Brooks’ personal items and a box containing a fully loaded .38 special revolver and ammunition. Fingerprints on the gun box and two cartridges matched Brooks’ fingerprints, and ballistics testing showed that the only two slugs that could be recovered from the victims were fired from the same .38 special. Authorities traced the gun to one that Brooks had purchased on February 25, 1982, and found gun-powder nitrate on the right sleeve of Brooks’ coat.
On March 10, 1982, a grand jury indicted Brooks on three counts of aggravated murder. Brooks pleaded not guilty, after which the trial court referred him for a pre-trial competency hearing. Following a hearing at which a court-appointed psychiatrist, Dr. Aaron Billowitz, testified that Brooks suffered from schizophrenia, the court found Brooks “competent to stand trial,” reasoning that he has the “ability to understand the charge against him and work and cooperate with his attorneys in his defense.” Brooks waived his right to a jury trial and, as permitted under Ohio law, proceeded to trial before a three-judge panel.
During the guilt phase of the trial, Brooks prohibited his lawyers from presenting an opening or closing statement, putting on any witnesses or cross-examining certain witnesses. On September 23, 1983, the three-judge panel found Brooks guilty of the aggravated murders of his sons and referred him for a presentence investigation and psychiatric evaluation. At the sentencing hearing on November 29–30, 1983, Brooks presented three witnesses: Dr. Stanley Althof, Dr. Kurt Bertschinger and Paul Hrisko. Althof, the chief psychologist at the Cuyahoga County Court Psychiatric Clinic, testified that Brooks suffered from paranoid schizophrenia, which “impair[s] a person,” “reduce[s] his judgment, . . . reduce[s] his control, and likely did contribute to the commission of some crime.” Bertschinger testified that Brooks suffered from psychogenic amnesia, which prevented him from having “conscious recall of the alleged criminal activities in which he was involved.” Because Brooks’ amnesia prohibited Bertschinger from “obtain[ing] from [Brooks] anything about the incident, and [because there was] absolutely no collateral information [concerning Brooks’ mental state at the time of the murders],” Bertschinger could “make no opinion as to mitigating circumstances.”
Hrisko, one of the three attorneys who represented Brooks during the guilt and penalty phases of the trial, indicated that Brooks refused to testify at both phases of the trial and that Brooks refused to submit to a sodium-amytal test, which psychiatrists use with trauma survivors to access repressed or unconscious material. The State presented three witnesses at sentencing: James Hughey, Brooks’ wife, Beverly, and Billowitz. Trying to show that Brooks understood psychology and had contrived his amnesia to appear incompetent, the State called Hughey (a Cleveland police officer) and Beverly Brooks to testify that, in the early 1970s, Brooks had taken college-level psychology courses and that psychology-related books were recovered from Brooks’ residence after the murders.
The State called Billowitz, a psychiatrist who evaluated Brooks on four occasions and who submitted multiple reports to the court, to testify that Brooks “was legally sane at the time of the act.” Billowitz conceded on cross-examination that Brooks “was schizophrenic at the time of this act” and “may have experienced paranoid delusions” at that time, but nonetheless concluded that Brooks “maintained the capacity to appreciate that killing was wrong and . . . had the capacity to conform his conduct to the requirements of the law (as indicated by the great amount of circumstantial evidence showing detailed planning and awareness of escaping detection[)].”
On November 30, the three-judge panel sentenced Brooks to death for each of the murders. In its written opinion, the panel recognized that Brooks “suffered from a mental illness—schizophrenia”—“before, during, and after commission of the [murders],” but concluded that the “mental illness or defect did not cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.” The panel also acknowledged that Brooks’ “family relationship [had] steadily deteriorated” since 1976 and that “[i]t [was] entirely conceivable that [Brooks] was under extreme stress due to [this] deteriorated relationship[,] . . . [his] lack of employment, and [the] threat of divorce”—including being served with divorce papers two days before the murders—but found that Brooks’ “free will was not impaired by” these events or his mental illness.
Brooks, the court stated, “in a single course of conduct, with prior calculation and design, chose to take a gun to the heads of his three sons and execute them through a twisted sense of jealousy, hatred, or despair. He had the ability to refrain from commission of those heinous acts.” In reaching this conclusion, the panel “rejected [Brooks’] claim of psychogenic amnesia,” reasoning that he had amnesia “only about those things that were incriminating, remembering things that were not incriminating, even though the incriminating and non-incriminating incidents or facts occurred at exactly the same time or close together in time. . . . [H]is denials were lies, not memory lapses, and . . . he clearly was not a victim of psychogenic amnesia.” The court in the end “conclude[d] beyond a reasonable doubt that the aggravating circumstances outweigh all of the mitigating factors.”
Ohio Death Row: Reginald Brooks News & Blog
Murdered by the State of Ohio on Nov. 15, 2011
Reginald Brooks # 179740
DOB: 3/20/45
County: Cuyahoga
Clemency Report
Some of the reasons to ask for clemency were:
• Everyone agrees that Reginald suffered from schizophrenia before, during, and after murders:
• He also suffers from paranoia and believed his wife and co-workers tried to poison him, accused his wife of having an incestuous relationship with their oldest son, believed in voodoo and mutilated dolls, and refused to allow his oldest son to display athletic trophies and was under severe stress.
• In addition, Reginald suffered from psychogenic amnesia and was unable supply some important information to his lawyer.
• Reginald’s lawyers did not thoroughly interview family members, friends or mental health experts who could have provided additional information about his mental state.
• Reginald Brooks has been on Ohio’s Death Row since 1984. Clearly he can safely kept away from society.
We deeply sympathize with family and friends of the Brooks children, but we respectfully offer that another death will neither heal nor resolve this tragedy and urge Governor Kasich to commute the sentence of Reginald Brooks to life without parole.
Contact: Governor Kasich
Riffe Center, 30th Floor 77
South High Street
Columbus, OH 43215-6108
Phone: (614) 466-3555
Fax: (614) 466-9354
News artilcles related to Reginald Brooks
Ohio Attorney General - 2010 Capital Crimes Annual Report
List of individuals executed in Ohio
A list of individuals convicted of murder that have been executed by the U.S. State of Ohio since 1976. All were executed by lethal injection.
1. Wilford Berry, Jr. (19 February 1999) Charles Mitroff
2. Jay D. Scott (14 June 2001) Vinnie M. Price
3. John William Byrd, Jr. (19 February 2002) Monte Tewksbury
4. Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
5. Robert Anthony Buell (24 September 2002) Krista Lea Harrison
6. Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
7. David M. Brewer (April 29, 2003) Sherry Byrne
8. Ernest Martin (June 18, 2003) Robert Robinson
9. Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
10. John Glenn Roe (3 February 2004) Donette Crawford
11. William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
12. William G. Zuern, Jr. (8 June 2004) Phillip Pence
13. Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
14. Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
15. Adremy Dennis (October 13, 2004) Kurt Kyle
16. William Smith (March 8, 2005) Mary Bradford
17. Herman Dale Ashworth (27 September 2005) Daniel L. Baker
18. William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
19. John R. Hicks (29 November 2005) Brandy Green
20. Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
21. Joseph L. Clark (4 May 2006) David Manning
22. Rocky Barton (12 July 2006) Kimbirli Jo Barton
23. Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
24. Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
25. James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
26. Christopher J. Newton (24 May 2007) Jason Brewer
27. Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
28. Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
29. Daniel E. Wilson (June 3, 2009) Carol Lutz
30. John Fautenberry (July 14, 2009) Joseph Daron Jr.
31. Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
32. Jason Getsy (August 18, 2009) Ann R. Serafino
33. Kenneth Biros (December 8, 2009) Tami Engstrom
34. Vernon Lamont Smith (January 7, 2010) Sohail Darwish
35. Mark Aaron Brown (February 4, 2010) Isam Salman, Hayder Al Tuyrk
36. Lawrence Reynolds Jr. (March 16, 2010) Loretta Mae Foster
37. Darryl Durr (April 20, 2010) Angel Vincent
38. Michael Francis Beuke (May 14, 2010) Michael Craig
39. William Garner (July 13, 2010) Deondra Freeman, Richard Gaines, Markeca Mason, Mykkila Mason, and Denitra Satterwhite
40. Roderick Davie (August 10, 2010 John Ira Colema Tracey Jeffries
41. Michael Benge (October 6, 2010) Judith Gabbard
42. Frank G. Spisak Jr. (February 17, 2011) Rev. Horace Rickerson, Timothy Sheehan, Brian Warford
43. Johnnie R. Baston (March 10, 2011) Chong Mah
44. Clarence Carter (April 12, 2011) Johnny Allen
45. Daniel Lee Bedford (May 17, 2011) Gwen Toepfert, John Smith
46. Reginald Brooks (November 15, 2011 Reginald Brooks Jr., Vaughn Brooks, Niarchos Brooks.
State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (Ohio 1986). (Direct Appeal)
Defendant was convicted of three counts of aggravated murder and sentenced to three death penalties, to be carried out concurrently. The Court of Appeals, Cuyahoga County, affirmed, and defendant appealed. The Supreme Court held that: (1) assuming trial counsel was deficient in failing to introduce equivocal report by psychiatrist at competency hearing, such deficiency did not prejudice defendant so as to constitute ineffective assistance of counsel, and (2) death sentence imposed on defendant convicted of killing his three sons was neither excessive nor disproportionate to penalties imposed in similar cases. Affirmed.
On Saturday, March 6, 1982, between 3:30 and 4:00 p.m., Beverly Brooks returned from work to the two-family home she resided in with her husband Reginald and her three sons, Reginald, Jr., age seventeen; Vaughn, age fifteen; and Niarchos, age eleven. After entering her home, she noticed that at least one or two of her three sons was still in bed. She heard the stereo playing and tried to locate her husband, who was not to be found. She then went to her sons' room again and saw that all three were still in bed. She saw that Niarchos' bed had blood on it and assumed he had a nosebleed. She turned back the cover and found Niarchos had been shot in the head. Beverly Brooks then looked over to the bunk beds and discovered her other two sons had also been shot in the head. She screamed and left the house. Shortly thereafter, she called the police.
Three East Cleveland police officers responded and found three deceased males who had each sustained a gunshot wound to the head. The youngest child, Niarchos, had been shot through the covers which were pulled up over his head. There was no evidence the house had been ransacked and no indication of a struggle. The police discovered that appellant, Reginald Brooks, Sr., had purchased a Continental Trailways bus ticket on the morning of the murders to travel from Cleveland to Las Vegas. The bus had departed from Cleveland at approximately 10:40 or 10:55 a.m. The East Cleveland police notified authorities on the bus route in Utah. On March 8, 1982, appellant was apprehended in a Continental *145 Trailways bus en route to Las Vegas by police in Beaver City, Utah. Following a reading of his Miranda rights by the police, appellant indicated that he understood his rights; however, he refused to talk to the police. The police inquired about his luggage and appellant responded that he had only one small maroon bag. The police confiscated the bag and took appellant into custody.
An officer present at the time of the arrest recalled seeing two baggage claim tickets in appellant's left breast pocket. On March 18, 1982, the officer asked a Continental Trailways bus driver who drove the Beaver City-Las Vegas route to check the baggage claim area at the Las **409 Vegas station for a bag which had originated in Cleveland. On March 19, 1982, the driver reported that he had found a red suitcase in the Las Vegas bus station, which bag had originated in Cleveland. The Utah officer checked appellant's inventoried belongings and found a second baggage claim check between two pictures in appellant's wallet. On March 20, 1982, the red American Tourister suitcase with a combination lock was delivered to the officers in Beaver City.
Beverly Brooks had noticed her suitcase was missing following the murders. It matched the description of the suitcase found in Las Vegas. She gave the East Cleveland police officers the combination, as well as her permission to open the suitcase. The officers also obtained a warrant to search the suitcase. Appellant was present when the officers opened the suitcase. When they asked appellant for his permission to open the suitcase, he responded that it was not his suitcase. Upon opening the suitcase, the police found, in addition to personal items, a black box with a .38 Special RG Model 40 revolver, fully loaded with six live rounds, and a box of ammunition. Latent fingerprints on the gun box and two cartridges matched appellant's fingerprints. According to ballistics experts, two of the three slugs recovered from the scene of the murders were from the same .38 Special. The third slug exhibited the same classification as the other two; however, it was so mutilated that no absolute conclusion could be drawn.
On March 10, 1982, appellant was indicted for three counts of aggravated murder with specifications in violation of R.C. 2903.01 for the killing of his three sons. On May 9, 1983, a psychiatric hearing was held to determine if appellant was competent to stand trial. Following the hearing, the trial court found appellant competent to stand trial. Trial commenced on September 19, 1983 before a three-judge panel after appellant waived his right to a jury trial.
The evidence adduced at trial outlined the events that had transpired prior to the murders and indicated that there had been a great deal of tension in the Brooks family. Prior to 1976, appellant worked to support his family. In 1976, he quit his job and stayed at home. As a result, Beverly Brooks was the sole support for her family. In the fall of 1981, Reginald, Jr. purchased a watch with money he earned working at a car wash. The watch disappeared one day and it was later discovered that appellant had pawned it. On January 31, 1982, appellant confronted his son Vaughn concerning Vaughn's schoolwork. Vaughn was unresponsive to appellant's questions and appellant struck Vaughn. Beverly Brooks attempted to intercede but was pushed out of the way by appellant. Reginald, Jr. entered the room and an altercation ensued, terminating when the two boys physically subdued their father. Appellant was then heard to say to Reginald, Jr., “You're dead.”
On February 24, 1982, appellant obtained a cash advance in the amount of $140 on his VISA card. On February 25, 1982, only nine days prior to the murders, appellant traveled across town to North Olmsted where he purchased the murder weapon and ammunition. On the federal gun registration form, he concealed the fact that he had once been arrested for grand theft. He was later identified by the firearms dealer as the man who had purchased the weapon. On March 4, 1982, two days prior to the murders, appellant was served with divorce papers. Appellant spoke with his wife on the telephone and told her he was going to burn the papers. On Tuesday or Wednesday of that week, Beverly Brooks' employer informed her that she would have to work on Saturday, March 6, 1982. She in turn informed appellant.
On the morning of the murders, Beverly Brooks left for work between 7:15 and 7:30 a.m. Appellant was at home. At approximately 7:30 a.m., appellant was seen walking his dog by a neighbor. At trial, the neighbor testified that there was no question the man walking the dog was appellant. Vicki Hayes lived in the upper portion of the two-family house that the Brookses resided in. Her bedroom was located directly above the three Brooks boys' bedroom. At approximately 8:00 a.m., she heard a “loud sound.” She then heard a stereo playing loudly the remainder of the day. Vonda Jackson, a friend of Reginald Brooks, Jr., called the Brooks home sometime after 9:00 a.m. Appellant answered, and when asked by Vonda if she might speak with Reginald, Jr., appellant responded, “I am afraid not.” Vonda called the Brooks home three more times out of curiosity until 11:00 a.m.; however, no one answered. Additionally, appellant was identified by a ticket agent for Continental Trailways who testified that he sold Reginald Brooks, Sr. the bus ticket to Las Vegas on the morning of the murders.
On September 23, 1983, the three-judge panel found appellant guilty of the three counts of aggravated murder with which he was charged. On November 29, 1983, the mitigation hearing was held to determine whether the death penalty would be imposed. The three-judge panel found the aggravating circumstances of the murders outweighed any mitigating factors. As a result, on November 30, 1983, the trial court sentenced appellant to three death penalties to be carried out concurrently.
Appellant appealed his sentence to the court of appeals. A motion by appellant to withdraw his appeal was later denied and on August 15, 1985, the court of appeals affirmed the sentence of the trial court and issued a separate opinion as required by R.C. 2929.05(A).
The cause is now before this court upon an appeal as of right. John T. Corrigan, Pros. Atty., and Michael S. Nolan, Cleveland, for appellee. Ronald C. Balbier, Cleveland, for appellant.
PER CURIAM.
This court is confronted today by issues concerning the convictions and death sentence of appellant. For the reasons set forth below, we affirm the judgment of the court of appeals and uphold the death sentence.
I
In his first proposition of law, appellant contends that the failure of his defense counsel to introduce the testimony and report of a clinical psychologist relevant to the issue of his competence to stand trial at the competency hearing constituted ineffective assistance of counsel in violation of his rights under both the Ohio and United States Constitutions.
Under both Constitutions, a fair trial is guaranteed in all criminal prosecutions. One of the elements to a fair trial is the right to have the assistance of counsel. In McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, the United States Supreme Court recognized that “the right to counsel is the right to the effective assistance of counsel.” In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the court determined the standard to be used in reviewing claims of ineffectiveness. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. The court proceeded to devise a two-part test for reviewing claims of ineffectiveness: “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. at 2064. This court in State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623 [2 O.O.3d 495], devised a substantially similar test: “When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next * * * there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.” Id. at 396-397, 358 N.E.2d 623.
In the case sub judice, appellant argues that his trial counsel's failure to present evidence in their possession concerning the appellant's alleged incompetence to stand trial was a gross violation of an essential duty owed to appellant. Prior to appellant's trial a hearing was held in accordance with R.C. 2945.37 FN1 to determine the question of whether or not appellant was competent to stand trial. The prosecution presented the testimony of Dr. Aaron Billowitz, a psychiatrist from the Court Psychiatric Clinic. At the time of the hearing, Billowitz had examined appellant on two separate occasions for the purpose of determining competency. Billowitz reviewed the factors as prescribed under R.C. 2945.37(A), which provides in pertinent part: “A defendant is presumed competent to stand trial, unless it is proved by a preponderance of the evidence * * * that because of his present mental condition he is incapable of understanding the nature and objective of the proceedings against him or of presently assisting in his defense.” At the hearing, Billowitz testified that appellant (1) clearly understood the charges against him, (2) was able to work with his attorney in his defense despite “some mild limitations,” and (3) was competent to stand trial.
FN1. R.C. 2945.37(A) provides in relevant part: “In a criminal action in a court of common pleas * * *, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue as provided in this section. * * * ” Additionally, Billowitz' written report stated: “He [appellant] does, in my opinion, show good abilities to understand the charge against him and to work with his attorney in his defense.”
Defense counsel did not present any testimony at the competency hearing. However, they did have in their possession the report of Dr. Sandra McPherson, a clinical psychologist who also examined appellant. Appellant now contends that he was denied effective assistance of counsel before trial in that his attorneys committed prejudicial error because they failed to present any evidence or argument at the competency hearing of appellant's incompetence to stand trial, despite the availability of such evidence, and despite the fact that such evidence tends to prove incompetency. We find no merit in appellant's contention. McPherson's competency hearing report comes to no definitive conclusion that appellant was incompetent to stand trial.
The report states that appellant understands the legal process, i.e., the nature and objective of the proceedings against him. As to whether the appellant could assist in his defense, the report states: “The problem for competence arises in terms of the issue of denial and the act itself. If his denial is a psychological artifact [sic] of maintaining his repression of what occurred and is therefore all a part of his defense system and leads him to construe reality quite differently from the way it actually was and is, at least insofar as his understanding of the act is concerned and his having done it, then in spite of the fact that he understands the legal process, he is not able psychologically to cooperate with his attorney in developing his defense. * * * However, from a legal point of view, in order to come to conclusions of incompetency, one has to assume guilt which in this case is still a matter of official question.” (Emphasis added.) The report concluded with the recommendation “that pending the outcome of the trial and any change in his deportment and behavior that a further examination be conducted in the future should questions of mitigation be raised since this material would lay a foundation for certain aspects of mitigation, but at this point is tentatively based.”
McPherson's report certainly does not amount to evidence that “tends to prove incompetency.” Defense counsel did heed McPherson's advice and presented issues raised by her report at the later mitigation phase of the proceedings. “Judicial scrutiny of counsel's performance must be highly deferential.” Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065.
In applying the instant facts to the two-part Strickland test, it is difficult to find defense counsel's conduct deficient or prejudicial. Assuming, arguendo, defense counsel's conduct was deficient, we cannot agree that failure to introduce the inconclusive findings of McPherson at the competency hearing was prejudicial to appellant. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, at 694, 104 S.Ct. at 2068. The omitted conclusions of McPherson did not find appellant incompetent to stand trial. Presentation of her report would not have caused the result of the proceeding to have been different. Thus, under the Strickland test, appellant has failed to establish his claim of ineffective assistance of counsel.
II
Appellant's second proposition of law asserts that failure of his defense counsel to secure an opinion by an independent psychiatrist regarding the issue of his ability to cooperate with counsel in preparing his defense prior to the competency hearing constituted ineffective assistance of counsel in violation of his rights under both the Ohio and United States Constitutions.
This issue requires further application of the Strickland analysis. Appellant contends that his defense was prejudiced due to trial counsel's gross negligence in not securing an independent psychiatrist's opinion prior to the competency hearing. Appellant argues that (1) trial counsel knew of the findings of two separate court psychiatrists which indicated some possible mental illness and (2) trial counsel had possession of the report by McPherson, yet secured no independent psychiatric opinion. Appellant's argument centers around an illness known as psychogenic amnesia. Dr. Kurt Bertschinger, who testified for appellant at the mitigation phase of the proceedings, diagnosed the symptoms described by McPherson as psychogenic amnesia. This type of amnesia was described as being the mind's way of dealing with a traumatic incident that is too overwhelming to confront. It was further described as differing from refusal or fabrication in that the amnesia is the mind's unconscious attempt to erase the recollection of the event whereas the latter are willful attempts at deceit. Thus, being unable to recall the events of the crime, appellant could not assist in his defense. Appellant arrives at the conclusion that had an independent psychiatric opinion such as Bertschinger's been secured prior to the competency hearing, he would have been found incompetent to stand trial. We do not arrive at that conclusion.
Prior to the competency hearing, appellant was examined by McPherson, Billowitz and Dr. Stanley Althof, a psychologist from the Court Psychiatric Clinic. As previously discussed, Billowitz concluded that appellant was competent to stand trial and McPherson came to no definitive conclusions. Althof, who testified at the mitigation hearing, concluded in his written report: “In summary, Mr. Brooks' psychological testing is consistent with the diagnosis of schizophrenia-paranoid type.” However, he stated no opinion as to appellant's competency to participate in his defense. Billowitz had diagnosed appellant as having schizophrenia, residual type, but competent to stand trial.
Appellant states in his brief to this court that “[i]f the testimony of Dr. Bertschinger and the report of Dr. McPherson had been introduced at the competency hearing along with the testimony of Dr. Billowitz and Dr. Althof, then a preponderance of the evidence would have been in the Court's record showing the appellant was not competent to stand trial * * *.” We must observe that Bertschinger, a private psychiatrist who testified at the mitigation hearing, found that appellant suffered from psychogenic amnesia prior to trial. He opined that appellant's condition would preclude his ability to cooperate effectively with counsel prior to trial. However, Bertschinger admitted that no other report on appellant specifically mentioned psychogenic amnesia.
A review of the mitigation hearing supports a finding that failure of defense counsel to secure an independent psychiatric report for the competency hearing does not constitute ineffectiveness of counsel under the standards set by Strickland, supra. The trial court heard testimony at the mitigation hearing from the psychiatrists and psychologists who examined appellant. The trial court unanimously rejected the claim of psychogenic amnesia, finding instead that appellant was merely refusing to discuss the events of the morning of the murders. Thus, the premise of appellant's claim of incompetency, the amnesia, although presented for the first time at the mitigation hearing, was soundly rejected by the trial court as fabrication both on the issues of competency and mitigation. Assuming, arguendo, appellant does suffer from psychogenic amnesia, this fact alone would not render him incompetent to stand trial. Numerous jurisdictions have considered the question and are virtually in unanimous agreement that amnesia alone is not sufficient to render the accused incompetent to stand trial. See, e.g., Ritchie v. State (Ind.1984), 468 N.E.2d 1369; Morrow v. State (1980), 47 Md.App. 296, 423 A.2d 251; Commonwealth v. Barky (1978), 476 Pa. 602, 383 A.2d 526; Thompson v. State (Ala.Crim.App.1978), 364 So.2d 683; United States v. Swanson (C.A.5, 1978), 572 F.2d 523, certiorari denied (1978), 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152; United States, ex rel. Parson, v. Anderson (C.A.3, 1973), 481 F.2d 94, certiorari denied (1973), 414 U.S. 1072, 94 S.Ct. 568, 38 L.Ed.2d 479; State v. McClendon (1968), 103 Ariz. 105, 437 P.2d 421; Commonwealth, ex rel. Cummins, v. Price (1966), 421 Pa. 396, 218 A.2d 758, certiorari denied (1966), 385 U.S. 869, 87 S.Ct. 136, 17 L.Ed.2d 96. Morrow v. State, supra, states 47 Md.App. at 301, 423 A.2d 251: “Although ‘there are no definitive judicial explanations' of what constitutes the ability to assist in one's own defense, * * * it is clear that the cases without exception reject the notion that an accused possesses that ability only if he is able to remember the circumstances of the crime with which he is charged.” We agree with Commonwealth v. Barky, supra, which states 476 Pa. at 606, 383 A.2d 526: “We do not believe that appellant's amnesia alone denied him either the effective assistance of counsel or the opportunity to present a defense.” Thus, had the trial court determined appellant was suffering from amnesia, the finding on the incompetence issue would not have been different. Clearly, under the Strickland analysis, there was no prejudice to appellant's defense and we must reject this claim of ineffective assistance of counsel.
III
Appellant next contends, in his third proposition of law, that the trial court and court of appeals erred in concluding beyond a reasonable doubt that pursuant to R.C. 2929.03, the aggravating circumstances out-weighed the mitigating factors. The crux of appellant's argument is that (1) there were no witnesses to the murder, (2) appellant was mentally ill and under a great deal of stress, (3) appellant had no significant prior criminal record, and (4) the state did not prove beyond a reasonable doubt that appellant deliberately murdered his children according to a predetermined plan.
R.C. 2929.03(D)(3) provides in pertinent part: “ * * * [I]f the panel of three judges unanimously finds, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, it shall impose the sentence of death on the offender.” R.C. 2929.04(B) sets forth a non-exclusive list of mitigating factors the trial court must consider in deciding whether it should impose the death sentence.FN2 When the death sentence is imposed by the trial court, R.C. 2929.05(A) requires the court of appeals to make an independent finding in which it must determine whether the aggravating circumstances outweigh the mitigating factors. For the reasons that follow, we conclude that the trial court and court of appeals properly considered all of the evidence in mitigation and we agree with their evaluation of that evidence.
FN2. R.C. 2929.04(B) provides in pertinent part: “If one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment or count in the indictment and proved beyond a reasonable doubt, and if the offender did not raise the matter of age * * * or if the offender, after raising the matter of age, was found at trial to have been eighteen years of age or older at the time of the commission of the offense, the court, * * * or panel of three judges shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following factors: “(1) Whether the victim of the offense induced or facilitated it; “(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; “(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; “(4) The youth of the offender; “(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; “(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; “(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”
The trial court properly addressed each and every mitigating factor enumerated in R.C. 2929.04(B). Appellant contends that the trial court's sentencing was in error because his state of mind on the morning of the murders could not be determined with any degree of certainty. Appellant has never revealed any evidence about that morning and there were no witnesses to the murders. However, two witnesses testified concerning appellant's behavior that morning. James Schobel, a neighbor, saw appellant walking the family dog, and Vonda Jackson spoke to appellant on the phone. They did not observe any unusual or irrational behavior.
Overwhelming circumstantial evidence adduced at the trial supports the lower courts' conclusions that appellant murdered his three sons according to a plan and with prior calculation and design. Approximately one month prior to the murders, appellant threatened his eldest son with the words, “You're dead.” Nine days before the murders appellant traveled all the way across town to North Olmsted, lied on his federal permit application and purchased the murder weapon and ammunition. On the morning of the murders, appellant walked the family dog, thus providing an impression of normalcy. With prior knowledge that his wife would be at work, appellant carried out his plan at a time when he knew his acts would not be detected for a considerable length of time. This provided him with plenty of time to get to the bus station, purchase a bus ticket and flee before the bodies of his young sons were discovered. He also turned up the volume of his stereo to muffle the sound of the gunshots. Finally, appellant had also taken the time to pack his high school diploma and birth certificate as well as the murder weapon and additional ammunition. All of these facts point to the conclusion that appellant purposefully killed his three children with prior calculation and design.
Appellant also argues that he did not have a significant criminal record. It must be remembered, however, that lack of a significant history of prior criminal convictions is but one of the mitigating factors the court must weigh against the aggravating circumstances of the crime.FN3
FN3. R.C. 2929.04(C) provides in pertinent part: “ * * * The existence of any of the mitigating factors listed in division (B) of this section does not preclude the imposition of a sentence of death on the offender, but shall be weighed pursuant to divisions (D)(2) and (3) of section 2929.03 of the Revised Code by the trial court, trial jury, or the panel of three judges against the aggravating circumstances the offender was found guilty of committing.” Appellant further contends that the state did not prove beyond a reasonable doubt he was sane at the time of that act. However, Billowitz testified that appellant had the capacity to appreciate the criminality of his acts and to conform his conduct to the requirements of the law. Appellant did not provide any expert testimony to the contrary. Bertschinger, appellant's expert, stated he could not express an opinion with respect to mitigating circumstances at the time of the crime. Despite acknowledging that appellant was suffering from a mental illness at the time of the murders, the trial court believed the triple murder outweighed this mitigating factor. The court of appeals realized that appellant suffered from some form of schizophrenia but found appellant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Both the trial court and court of appeals rejected appellant's contention of psychogenic amnesia. The trial court considered the testimony and reports of two competent psychiatrists. The trial court determined that Billowitz' expert testimony was more plausible and that appellant deliberately chose not to tell certain things which he recalled. The trial court's opinion detailed its findings with regard to the claim of psychogenic amnesia: “ * * * [Appellant] was capable of recalling much of the details of the past. He conveniently had psychogenic amnesia only about those things that were incriminating, remembering things that were not incriminating, even though the incriminating and non-incriminating incidents or facts occurred at exactly the same time or close together in time.” FN4
FN4. “Reginald A. Brooks denied the killing. Couldn't remember? He denied living at home when the killings occurred but he admitted getting on the bus the same day to go to Las Vegas. He admitted ownership of an innocuous suitcse [ sic ] found in his possession on the bus. He stated then that it was his only luggage. He didn't tell the police of the luggage containing the murder gun and ammunition and denied any connection to it when it was found and he was confronted with it.
“He denied having received the divorce papers before the killings, whereas, in fact, he had. “ * * * “He denied leaving Cleveland to flee, claiming he had left before the killings to obtain work in Las Vegas. “He denied the incriminating facts of obtaining money with his Visa card on February 24th and purchasing the murder weapon with cash on February 25th. “The Court concludes that his denials were lies, not memory lapses, and that he clearly was not a victim of psychogenic amnesia.”
In its independent review pursuant to R.C. 2929.05(A), the court of appeals held that appellant deliberately shot each of his three sons in the head according to a predetermined plan. That court also rejected the mental illness claim as a mitigating factor which outweighed the aggravating circumstances of this crime. The court of appeals also properly found that the death penalty is appropriate in this case and is not excessive or disproportionate to the penalty imposed in similar cases. This court finds that the trial court and court of appeals did not err in concluding that the aggravating circumstances of the crime outweigh any mitigating factors.
IV
In his fourth proposition of law, appellant argues that imposition of the death penalty violates the rights granted to him by the Eighth and Ninth Amendments to the federal Constitution and Sections 2, 9 and 16, Article I of the Ohio Constitution. Essentially, appellant contends that the death penalty is cruel and unusual punishment and is not the least restrictive means of accomplishing any compelling state interest. This court fully addressed and rejected this argument in State v. Jenkins (1984), 15 Ohio St.3d 164, 473 N.E.2d 264, certiorari denied (1985), 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643; State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728; and State v. Buell (1986), 22 Ohio St.3d 124, 489 N.E.2d 795. We therefore reject this proposition of law.
V
Appellant's fifth proposition of law urges that Ohio's statutory framework for imposition of the death penalty which provides for a bifurcated trial violates his constitutional rights to a fair trial and effective assistance of counsel. Appellant contends that he was prejudiced by the bifurcated trial procedure because the same three-judge panel which determined appellant was competent to stand trial heard the guilt phase of the trial and then the penalty phase. Appellant believes that since the same court had found appellant competent to stand trial and guilty of executing a predetermined plan to kill his children, that court's objectivity regarding mitigating factors was highly questionable. This court has addressed this argument with regard to the use of the same jury for the separate phases of the trial in a death penalty case and rejected it. State v. Martin (1985), 19 Ohio St.3d 122, 483 N.E.2d 1157; State v. Mapes (1985), 19 Ohio St.3d 108, 484 N.E.2d 140; State v. Jenkins, supra. We can articulate no reason why this argument should not also be rejected with regard to a three-judge panel. Moreover, appellant is unable to show he was the recipient of any prejudice resulting from this procedure. Based upon our prior holdings with regard to this issue where a jury was the trier of fact, we reject appellant's fifth proposition of law.
VI
Appellant further contends in his sixth proposition of law that Ohio's statutory framework for imposition of the death penalty violates the Due Process and Equal Protection Clauses of the Ohio and United States Constitutions. Appellant argues that the statutorily prescribed weighing of aggravating circumstances and mitigating factors is violative of due process and equal protection because no standard or guideline is given to explain how the weighing is to be accomplished. Thus, appellant believes the lack of any meaningful standard precludes any meaningful appellate review and invites arbitrariness. Appellant concedes that these arguments were rejected in State v. Jenkins, supra, but urges this court to find error in that holding. However, we find that these arguments were fully addressed and properly rejected in State v. Jenkins. They therefore cannot be a basis for reversal in this case.
VII
For his seventh and final proposition of law, appellant asserts that upon an independent weighing pursuant to R.C. 2929.05(A), the record does not sustain a finding that the death penalty is appropriate in this case. R.C. 2929.05(A) requires this court to independently weight the aggravating circumstances against the factors appellant has presented which mitigate against the imposition of the death penalty.
R.C. 2929.05(A) states in pertinent part: “ * * * [T]he supreme court shall * * * review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case * * *.”
R.C. 2929.05(A) further provides: “ * * * [T]he supreme court shall affirm a sentence of death only if the * * * court is persuaded from the record that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors present in the case * * *.”
In the instant case, appellant was found guilty of the aggravating circumstance of purposefully killing two or more persons. Appellant has primarily presented evidence in mitigation that he was mentally ill, under a great deal of stress and had no prior criminal record. The record, however, shows a man who had a cold, calculated plan to murder his own sons and carried it out successfully. While he did suffer from some mental illness, he did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Following a careful consideration of the mitigating factors operating on appellant at the time he took the lives of Reginald, Jr., Vaughn and Niarchos Brooks, we can arrive at no other conclusion than that these mitigating factors do not outweigh the aggravating circumstances.
VIII
Our final determination must be whether the death sentence is appropriate in this case. R.C. 2929.05(A) provides in relevant part: “ * * * [T]he supreme court shall * * * determine * * * whether the sentence of death is appropriate. In determining whether the sentence of death is appropriate, the * * * supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. * * * ”
R.C. 2929.05(A) continues: “ * * * [T]he supreme court shall affirm a sentence of death only if * * * [it] is persuaded from the record * * * that the sentence of death is the appropriate sentence in the case.”
In the case sub judice, the heinous nature of the carefully orchestrated steps taken preceding and following the murders and the shocking circumstances under which the murders of his own sons were committed lead us to the conclusion that capital punishment can not be viewed as excessive in this case. This holds true when compared to the other cases in Ohio where the death penalty has been imposed. We therefore hold that a sentence of capital punishment in the instant case is neither excessive nor disproportionate to the penalties imposed in similar cases. Thus, we affirm the finding of the court of appeals that the death sentence is appropriate in this case.
IX
In conclusion, we find that there is no merit to any of the specific issues raised by appellant concerning the trial resulting in his convictions of the crimes described. Second, we find that the aggravating circumstances outweigh any and all mitigating factors attempted to be presented by the appellant. Third, we find the sentence of death to be appropriate in this case, as it is neither excessive nor disproportionate to the penalty imposed in similar cases. Thus, in accordance with R.C. 2929.05(A), we affirm the convictions and sentence of death in this case. The judgment of the court of appeals is affirmed. Judgment affirmed.
Brooks v. Bagley, 513 F.3d 618 (6th Cir. 2008). (Habeas)
Background: Following affirmance of his convictions for murdering his three sons and imposition of three death penalties, 25 Ohio St.3d 144, 495 N.E.2d 407, petitioner sought habeas corpus relief, arguing ineffective assistance of counsel during penalty phase. The United States District Court for the Northern District of Ohio, Donald C. Nugent, J., denied relief. Petitioner appealed.
Holdings: The Court of Appeals, Sutton, Circuit Judge, held that: (1) District Court's ruling was on merits and thus entitled to deference under Antiterrorism and Effective Death Penalty Act (AEDPA); (2) affidavit of petitioner's brother did not indicate that petitioner was prejudiced by any deficient performance of counsel; (3) affidavit of petitioner's ex-wife did not establish prejudice; (4) affidavit of counsel who had represented petitioner at penalty phase did not establish prejudice; (5) affidavit of primary mitigation expert did not establish prejudice; (6) affidavits of habeas petitioner's step-father, uncle, and former co-worker did not establish prejudice; and (7) affidavits, considered cumulatively, did not establish prejudice. Affirmed.
SUTTON, Circuit Judge.
This case arises from an act of filicide, in truth three acts of filicide, for Reginald Brooks murdered not just one of his sons but all three of them as they lay sleeping. Outside of Greek myth and the more fortunate sons of Cronus, this is not something we want to read about or indeed frequently ever hear about. This father, no surprise, suffered from a serious psychological illness and engaged in several odd forms of behavior during the years before the murders, information that the sentencing court was told and that it accepted. The court also was told that Brooks knew what he was doing on the morning of the murders, that he evaded responsibility for the crimes and that he had the capacity to appreciate what he did was wrong.
As is often true in the most appalling murder cases, the facts of the crime themselves add weight to both sides of the life-versus-death scales. The planned act of murdering one's three children confirms the utter depravity of the crime at the same time it suggests the seriousness of the defendant's psychological illness. In the end, the sentencing court found that the aggravating factors outweighed the mitigating factors and imposed three capital sentences on Brooks.
The debate today is whether Brooks' trial counsel provided ineffective assistance during the penalty phase of the trial by failing adequately to investigate his mental-health history and background. In support of this theory, Brooks principally offered three pieces of new evidence that his three lawyers, one investigator, one psychiatrist and one psychologist apparently did not discover and that they did not introduce during the mitigation hearing-namely that, during the two or so years before the murders, Brooks had practiced voodoo, accused his wife of having an incestuous relationship with their oldest son and refused to allow the same son to display his athletic trophies. The state courts rejected this claim in part because the sentencing court already had ample evidence of Brooks' serious psychological illness and other manifestations of that illness in front of it. The district court rejected his federal habeas claim as well. Because the state courts' resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, we affirm.
I.
On Saturday morning, March 6, 1982, Beverly Brooks left her home in Cleveland, Ohio, to go to work, leaving behind her three sons (17, 15, 11), who were still asleep, and her husband, Reginald, who was awake and upon whom she had served divorce papers two days earlier. At roughly 8:00 a.m., after Beverly had left the house, Reginald shot each of his sons in the head while they were asleep in their beds.
By the time Beverly returned home from work that day and discovered her dead children, Brooks had boarded a bus to Las Vegas, Nevada. On March 8, after tracing the credit card Brooks had used to purchase his bus ticket, police took him into custody in Utah. Although Brooks told the police he was carrying just one piece of luggage, a search of his wallet produced a baggage-claim check for a second suitcase. Inside that suitcase were Brooks' personal items and a box containing a fully loaded .38 special revolver and ammunition. Fingerprints on the gun box and two cartridges matched Brooks' fingerprints, and ballistics testing showed that the only two slugs that could be recovered from the victims were fired from the same .38 special. Authorities traced the gun to one that Brooks had purchased on February 25, 1982, and found gun-powder nitrate on the right sleeve of Brooks' coat.
On March 10, 1982, a grand jury indicted Brooks on three counts of aggravated murder. Brooks pleaded not guilty, after which the trial court referred him for a pre-trial competency hearing. Following a hearing at which a court-appointed psychiatrist, Dr. Aaron Billowitz, testified that Brooks suffered from schizophrenia, the court found Brooks “competent to stand trial,” reasoning that he has the “ability to understand the charge against him and work and cooperate with his attorneys in his defense.”
Brooks waived his right to a jury trial and, as permitted under Ohio law, proceeded to trial before a three-judge panel. During the guilt phase of the trial, Brooks prohibited his lawyers from presenting an opening or closing statement, putting on any witnesses or cross-examining certain witnesses. On September 23, 1983, the three-judge panel found Brooks guilty of the aggravated murders of his sons and referred him for a presentence investigation and psychiatric evaluation.
At the sentencing hearing on November 29-30, 1983, Brooks presented three witnesses: Dr. Stanley Althof, Dr. Kurt Bertschinger and Paul Hrisko. Althof, the chief psychologist at the Cuyahoga County Court Psychiatric Clinic, testified that Brooks suffered from paranoid schizophrenia, which “impair[s] a person,” “reduce[s] his judgment, ... reduce[s] his control, and likely did contribute to the commission of some crime.” Bertschinger testified that Brooks suffered from psychogenic amnesia, which prevented him from having “conscious recall of the alleged criminal activities in which he was involved.” Because Brooks' amnesia prohibited Bertschinger from “obtain[ing] from [Brooks] anything about the incident, and [because there was] absolutely no collateral information [concerning Brooks' mental state at the time of the murders],” Bertschinger could “make no opinion as to mitigating circumstances.” Hrisko, one of the three attorneys who represented Brooks during the guilt and penalty phases of the trial, indicated that Brooks refused to testify at both phases of the trial and that Brooks refused to submit to a sodium-amytal test, which psychiatrists use with trauma survivors to access repressed or unconscious material.
The State presented three witnesses at sentencing: James Hughey, Brooks' wife, Beverly, and Billowitz. Trying to show that Brooks understood psychology and had contrived his amnesia to appear incompetent, the State called Hughey (a Cleveland police officer) and Beverly Brooks to testify that, in the early 1970s, Brooks had taken college-level psychology courses and that psychology-related books were recovered from Brooks' residence after the murders. The State called Billowitz, a psychiatrist who evaluated Brooks on four occasions and who submitted multiple reports to the court, to testify that Brooks “was legally sane at the time of the act.” Billowitz conceded on cross-examination that Brooks “was schizophrenic at the time of this act” and “may have experienced paranoid delusions” at that time, but nonetheless concluded that Brooks “maintained the capacity to appreciate that killing was wrong and ... had the capacity to conform his conduct to the requirements of the law (as indicated by the great amount of circumstantial evidence showing detailed planning and awareness of escaping detection[)].”
On November 30, the three-judge panel sentenced Brooks to death for each of the murders. In its written opinion, the panel recognized that Brooks “suffered from a mental illness-schizophrenia”-“before, during, and after commission of the [murders],” but concluded that the “mental illness or defect did not cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.” The panel also acknowledged that Brooks' “family relationship [had] steadily deteriorated” since 1976 and that “[i]t [was] entirely conceivable that [Brooks] was under extreme stress due to [this] deteriorated relationship [,] ... [his] lack of employment, and [the] threat of divorce”-including being served with divorce papers two days before the murders-but found that Brooks' “free will was not impaired by” these events or his mental illness. Brooks, the court stated, “in a single course of conduct, with prior calculation and design, chose to take a gun to the heads of his three sons and execute them through a twisted sense of jealousy, hatred, or despair. He had the ability to refrain from commission of those heinous acts.” In reaching this conclusion, the panel “rejected [Brooks'] claim of psychogenic amnesia,” reasoning that he had amnesia “only about those things that were incriminating, remembering things that were not incriminating, even though the incriminating and non-incriminating incidents or facts occurred at exactly the same time or close together in time.... [H]is denials were lies, not memory lapses, and ... he clearly was not a victim of psychogenic amnesia.” The court in the end “conclude[d] beyond a reasonable doubt that the aggravating circumstances outweigh all of the mitigating factors.”
Brooks appealed, arguing (1) that his counsel provided ineffective assistance during the competency phase of the trial, (2) that the trial court erred in finding that the aggravating circumstances outweighed the mitigating factors and (3) that Ohio's death-penalty scheme was unconstitutional. The state courts rejected all three arguments and affirmed his conviction and sentence. See State v. Brooks, No. 48914, 1985 WL 8589 (Ohio Ct.App. Aug. 15, 1985); Ohio v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407, 410 (Ohio 1986) (per curiam). The U.S. Supreme Court denied review. Brooks v. Ohio, 479 U.S. 1101, 107 S.Ct. 1330, 94 L.Ed.2d 182 (1987).
In 1987, Brooks filed a petition for post-conviction relief in state court. Among other claims, Brooks contended that he had received ineffective assistance of counsel during the mitigation phase of the trial because his lawyers “fail[ed] to adequately conduct a mitigation investigation” and thus precluded his mental-health experts from receiving “valuable” information concerning his mental-health history. In support, Brooks submitted affidavits from family members, friends, mental-health experts, attorneys and prison officials. Those affidavits said that Brooks' counsel had not contacted certain family members and friends of Brooks and that those family members and friends, if contacted, would have told Brooks' counsel additional information about his mental-health history.
Ten years later, the trial court rejected all of Brooks' claims. It concluded that Brooks' ineffective-assistance arguments “are without merit legally or factually and not supported by sufficient evidence through affidavits to require a hearing in this matter.” Nothing in the record explains why it took ten years for the court to decide this case. The court of appeals affirmed, see State v. Brooks, No. 73729, 1999 WL 401655, at *9 (Ohio Ct.App. June 17, 1999), and the state supreme court denied review, see State v. Brooks, 88 Ohio St.3d 1432, 724 N.E.2d 809 (Ohio 2000).
On April 17, 2002, Brooks filed a petition for a writ of habeas corpus in federal court, raising 20 claims for relief. In his ninth claim, Brooks argued that he was denied the effective assistance of counsel during the mitigation phase of his trial. The district court held that the claim was procedurally defaulted and rejected it on the merits as well. The court rejected Brooks' other 19 claims and denied Brooks a certificate of appealability on any of his claims. We issued a certificate of appealability for three related ineffective-assistance claims arising from the mitigation phase of the trial: “(1) whether trial counsel rendered ineffective assistance for failing to provide requested information to the retained mental health experts; (2) whether trial counsel rendered ineffective assistance for failing to investigate Brooks's background and personal history; and (3) whether trial counsel rendered ineffective assistance for failing to present mitigating evidence other than that addressing [Brooks'] competency.”
II.
A.
Because Brooks filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), that statute potentially governs this case. We say “potentially” because AEDPA deference applies only “with respect to any claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d) (emphasis added). And in this case the Ohio Court of Appeals seemed to reject Brooks' ineffective-assistance claim on alternative grounds, one of which was on the merits, the other of which was not (the procedural-bar ruling).
Because we doubt the soundness of the state court's procedural-bar ruling (and indeed whether it even enforced a procedural bar), we must consider whether the court's alternative merits ruling receives AEDPA deference. We think that it does. The language of the statute does not draw a distinction between cases involving alternative rulings; it refers broadly to “any claim that was adjudicated on the merits in State court proceedings.” Id. While the state court of appeals need not have addressed the claim on the merits once it identified a procedural bar, it surely had the authority to do so as an additional ground for decision-making this additional ground no less a “claim that was adjudicated on the merits in State court proceedings” than if the case had not presented a procedural-bar issue at all. In this respect, we see no material difference between this type of alternative ruling and another one-where a state court offers alternative merits grounds for rejecting a claim. Here, for example, the state court ruled that Brooks failed to satisfy the deficient-performance and prejudice prongs of an ineffective-assistance claim, even though it need only have determined that Brooks failed to satisfy just one of these prongs to resolve the claim. Yet it would be strange to say that just one of these contentions was resolved on the merits or, worse, that neither one was. See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (applying AEDPA deference to those prongs of Strickland that the state courts “reached”).
This interpretation, moreover, would seem to favor judicial practices that in the main will benefit both sides in criminal cases. It is the rare criminal defendant who would prefer that the state courts not reach the merits of his constitutional claim. And it is the rare State that would object to a state court ruling that offers an additional ground for denying the defendant relief. Above all, this practice will “show a prisoner ... that it was not merely a procedural technicality that precluded him from obtaining relief.” Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). Just as a state court wishing to invoke an independent and adequate state ground to dispose of a case “need not fear reaching the merits of a federal claim in an alternative holding,” Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (emphasis omitted); see also White v. Schotten, 201 F.3d 743, 750-51 (6th Cir.2000), overruled on other grounds by Lopez v. Wilson, 426 F.3d 339 (6th Cir.2005) (en banc), so it need not fear losing the benefit of the doubt that AEDPA gives to state court rulings whenever it invokes an independent and adequate state ground as an alternative holding.
We have some company in taking this approach. All of the circuit courts that have considered the question to our knowledge have determined, albeit with little discussion, that an alternative procedural-bar ruling does not alter the applicability of AEDPA. See Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir.2004); Busby v. Dretke, 359 F.3d 708, 721 n. 14 (5th Cir.2004); Johnson v. McKune, 288 F.3d 1187, 1192 (10th Cir.2002); Bacon v. Lee, 225 F.3d 470, 478 (4th Cir.2000); cf. Massachusetts v. United States, 333 U.S. 611, 623, 68 S.Ct. 747, 92 L.Ed. 968 (1948); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S.Ct. 621, 68 L.Ed. 1110 (1924).
We therefore must review Brooks' claims based on the deferential requirements of AEDPA. That means we may grant Brooks' application for habeas relief only if the state court's adjudication of his claims “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
B.
Brooks does not contend that the state appellate court's decision was “contrary to” clearly established Supreme Court precedent. And with good reason: that decision “correctly identifie[d] Strickland as the controlling legal authority” and thus was “not ‘mutually opposed’ to Strickland itself.” Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). He instead contends that the decision unreasonably applied Strickland. See id. at 411-12, 120 S.Ct. 1495.
To establish ineffective assistance, a claimant must show that the attorney's performance was “deficient” and that this performance “prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance occurs when the representation falls “below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Prejudice occurs when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The question in this case is not whether Brooks' three attorneys had a duty to conduct an adequate investigation into his mental-health history and to provide his experts with the information they needed to present an effective defense. They clearly did. See id. at 691, 104 S.Ct. 2052; Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir.1995). The question rather is whether counsel satisfied that duty and, if they did not, whether that failing prejudiced Brooks' defense.
In support of his deficient-performance and prejudice arguments, Brooks presented several affidavits to the state courts in his post-conviction papers. In rejecting his claim, the state court of appeals offered the following reasons, among others: [T]he information in the affidavits submitted by him in support of his [post-conviction petition] was not sufficient to warrant relief or an evidentiary hearing. The information is similar to that rejected in other cases denying [petitions] raising claims of ineffective assistance in litigating a capital defendant's mental status. New information that provides only additional detail to that presented at trial or that is simply cumulative or alternative to that presented at trial does not provide grounds for relief. Brooks, 1999 WL 401655, at *6 (internal quotation marks and citations omitted). We will consider each of these affidavits in turn.
Affidavit of Tyrone Brooks. The affidavit of Brooks' brother, Tyrone, says that defense counsel did not contact him and that, if they had, he would have told them that he suffered from schizophrenia. The record casts considerable doubt on the premise of this claim-that counsel never spoke to Tyrone or that they never otherwise learned this information. The itemized statement of Mark Angelotta, Brooks' investigator, who worked at the direction of Brooks' attorneys, indicates that he met with Tyrone on three separate occasions-once before the guilt phase and twice between the guilt and penalty phases-and that Brooks' counsel attended the last meeting. Angelotta's notes refer to Tyrone's mental illness, indicating that “Tyrone has been in mental hospitals” for paranoid schizophrenia or depression.
But even if this affidavit could be construed to support a deficient-performance claim, it does not establish prejudice. The sentencing court was well aware that Reginald Brooks suffered from schizophrenia-indeed, no one disputed the fact-and the additional evidence that another family member suffered from the disease is the kind of cumulative evidence that does not show prejudice. See Durr v. Mitchell, 487 F.3d 423, 436 (6th Cir.2007).
Affidavit of Beverly Brooks. The affidavit of Brooks' wife, who was a witness against Brooks at the trial, focuses on Brooks' increasingly strange patterns of behavior. In 1976, Brooks quit his job because he thought his co-workers were trying to poison him. And in 1979 and 1980, Brooks (1) became isolated and rarely left his home or visited with family members, (2) accused Beverly of trying to poison him, (3) “mutilated a child's doll by a cutting a hole in the doll's chest” and “hang[ed] [the doll] by its neck from a chandelier,” (4) tore the telephone off the wall, (5) believed “in voodoo and the occult” and thought that “magic spells” could be placed on people, (6) destroyed his record albums and mutilated a wall ornament of a cat “by scratching out the eyes of the [cat]” and (7) “struck [Beverly] with his hands” for the second time in their marriage. What is more, “[d]uring the latter years of [the] marriage, [Brooks] accused [her] of having incestuous relations with [the couple's oldest son],” and Brooks was jealous of their oldest son's athletic abilities and refused to allow his son to display his trophies in the house. Beverly indicated that she would have divulged these facts to “defense counsel for use in the mitigation phase” but was not contacted “by defense counsel at or prior to either the guilt or mitigation phase of [Brooks'] trial.”
The records of Brooks' investigator also cast doubt on the allegation that Beverly and the trial team did not communicate. They show that he had a two-hour conference with Beverly Brooks, Tyrone Brooks and one of Brooks' attorneys on October 25, 1983, over a month before Bertschinger issued his report and a month before the sentencing hearing. They also show that he interviewed Beverly, and his itemized statement shows that he met or talked with all three of Brooks' attorneys on the same day as the interview. Bertschinger, Brooks' primary expert during the mitigation hearing, testified that he “called Ms. Brooks, the defendant's ex-wife, and spoke with her for approximately half an hour getting some background information and some of her observations, particularly as they pertained to Mr. Brook[s'] behavior just prior to the alleged incident.” Bertschinger pointed to specific comments that Beverly made to him concerning Brooks' behavior on the day of, and the years preceding, the murders.
All of this suggests that Brooks' counsel either spoke to Beverly or at least learned what she had to say through their investigator. But even if, despite this evidence, it could be said that her affidavit establishes deficient performance, it does not show prejudice. If the thrust of the affidavit is that counsel did not talk to Beverly about Brooks' history, that does not show prejudice if counsel's investigator spoke to Beverly (and no one claims that Brooks' attorneys failed to talk to their investigator) and if counsel's chief expert, Bertschinger, spoke directly to Beverly about the “background information and some of her observations, particularly as they pertained to Mr. Brook[s'] behavior just prior to the alleged incident.”
Not only did Bertschinger speak to Beverly about Brooks' background and the events leading up to the murders, but he also testified about most of the pieces of information mentioned in Beverly's affidavit anyway. Bertschinger testified that, beginning around 1977, Brooks “quit working,” “develop[ed] some suspicions regarding people at work,” “withdr[e]w from contacts with friends, and to some degree ... with family,” had “paranoid ideation[s],” “thought people were trying to poison his food,” “accused [Beverly] of trying to poison his food” and “had an idea at one point in time that his phone was being tapped.” Billowitz discussed some of the same background information in his report and testimony, see, e.g., JA 564 (explaining that Brooks had “significant difficulties in functioning” in the “last 5 years” and “appears to have become socially isolated” and “aggressive ... at home”), as did the sentencing panel in its opinion, see, e.g., JA 552 (“After the defendant Brooks quit working, their family relationship steadily deteriorated. At times, he was physically abusive toward his wife and children.”).
That leaves three topics Beverly mentioned in her affidavit that did not come out at trial-(1) Brooks' belief in voodoo, his mutilation of dolls and his destruction of albums and a wall ornament; (2) Brooks' accusation that Beverly was having an incestuous relationship with the couple's oldest son; and (3) Brooks' refusal to allow his oldest son to display athletic trophies. These items were cumulative of the information already provided and, no less importantly, none of Brooks' post-conviction experts explains why these additional items by themselves would have changed the diagnoses.
In this regard, this case is similar to Hill v. Mitchell, 400 F.3d 308 (6th Cir.2005). In Hill, the petitioner argued that post-conviction affidavits submitted by a psychiatrist and by a psychologist established prejudice under Strickland because they “demonstrate[d] how a properly prepared expert could have (and should have) testified.” Id. at 316. We rejected that argument-under a de novo standard of review no less, see id. at 314-because, although the affidavits “provide[d] more information about [the petitioner's] background” than was presented at trial, the petitioner “fail[ed] to explain why this additional information would have been likely to persuade a jury to give him a life rather than a capital sentence and why at any rate its absence from [trial] testimony affected the jury's deliberations given that much of this background information was in the ... psychological reports presented to the jury,” id. at 317. “[I]n order to establish prejudice,” we noted, “the new evidence that a habeas petitioner presents must differ in a substantial way-in strength and subject matter-from the evidence actually presented at sentencing.” Id. at 319. Yet there, as is true here, the information in the affidavits simply “echoed points” already presented to, and weighed by, the sentencer. Id. at 318; see also Clark v. Mitchell, 425 F.3d 270, 287 (6th Cir.2005); Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001).
Keep in mind, moreover, the context in which this information was sought. Brooks refused to allow his counsel to call Beverly as a witness at the guilt phase and apparently took the same view at the penalty phase of the trial, and he instructed counsel that they were “to in no way cross-examine [Beverly] as to the substantive facts that she might put forth.” The point of any interviews with Beverly thus was not, quite improbably, to consider using her as a witness on Brooks' behalf or to establish a basis for cross-examining her when she testified for the State during the mitigation phase; it was to obtain additional background information for the experts. Yet with the information the experts did possess, a diagnosis of schizophrenia was made, and the trial panel accepted that diagnosis.
Affidavit of Franklin Hickman. Filed by one of Brooks' penalty-phase attorneys, this affidavit says that Hickman was not provided with information concerning Brooks “[o]ther than the information contained in the psychological and psychiatric reports” and that he was not aware of, among other things, “Brooks' belief that he was being poisoned at work” or “the fact that prior to 1982 Brooks' brother Tyrone was hospitalized for treatment of schizophrenia.” Like Beverly's and Tyrone's affidavits, Hickman's affidavit runs into contrary record evidence. Angelotta's itemized statement indicates that he met or talked with Hickman on four occasions-for a total of five hours-including once with Tyrone and Beverly Brooks and once on the day before the start of the sentencing hearing. But we again need not resolve whether the allegations are true or whether they show deficient performance; they do not show prejudice.
Hickman himself managed to obtain some of this same information through his questioning at trial. Bertschinger testified that Brooks “develop[ed] some suspicions regarding people at work” and “thought people were trying to poison his food.” More importantly, as we have shown, most of this information came out during the mitigation hearing anyway, and the additional items Hickman mentions were cumulative of the mitigation theory already before the court.
Nor, critically, does Hickman's affidavit say anything about the extent of the investigations performed by Brooks' two other attorneys-the attorneys who handled the guilt phase of the trial, who brought Hickman into the case to assist them with the penalty phase of the trial and who presented part of the defense's case during the penalty phase-or anything about the extent of Angelotta's investigations. Having failed to present any affidavits from these other attorneys or from Angelotta to support his claims, Brooks is in no position to show that, whatever restrictions Hickman faced, they prejudiced Brooks' defense. Indeed, in view of the absence of affidavits from Brooks' other attorneys, there is no basis for concluding that they did not discover all of the allegedly new information and simply chose not to use it as a matter of strategy. See Carter v. Mitchell, 443 F.3d 517, 531 (6th Cir.2006) ( “[C]uriously absent from the record is any statement from trial counsel describing what he did or did not do in investigating [the defendant's] background. By not detailing trial counsel's efforts to learn of [his] background, [the defendant] has provided no basis for a finding that trial counsel's investigation was unreasonable.”).
Affidavit of Bertschinger. Bertschinger, Brooks' primary mitigation expert, said that defense counsel did not provide him with information about Brooks' mental-health history, which would have helped him assess Brooks. Here, too, there are disparities between what Bertschinger's affidavit says he did not have and what his testimony shows he did have. Although Bertschinger claimed he did not have information about “Brooks' suspicions that his co-workers ... intended to poison him,” he testified that Brooks “develop[ed] some suspicions regarding people at work” and “thought people were trying to poison his food.” Although Bertschinger claimed he did not know about “Brooks' self-imposed isolation from family members,” he testified that Brooks “withdr[e]w from contact with friends, and to some degree, withdrew even in his contacts with family.”
Just as his ultimate access to this information undermines a claim of prejudice, so too does his theory of prejudice. Bertschinger's affidavit (and Dr. Sandra McPherson's nearly identical affidavit) indicated that “this collateral information would have provided evidence to support the diagnosis that Brooks suffered from ... paranoid schizophrenia.” Yet the state courts already had that diagnosis in front of them. Another defense expert, Althof, gave this diagnosis at sentencing; the State's principal expert accepted a similar diagnosis; and the sentencing panel found that Brooks suffered from schizophrenia.
Bertschinger's (and McPherson's) affidavit responds that the additional information would have shown that Brooks was “actively psychotic and delusional shortly before his sons' deaths” and that such “psychosis and delusions would have had an important impact on Brooks' behavior at the time of his sons' murders.” But based on this allegedly new information, Bertschinger tellingly did not opine (and neither did McPherson) that Brooks did not appreciate the criminality of his conduct or did not have the ability to conform his conduct to the requirements of the law. In the absence of such an opinion from someone who evaluated Brooks and in the presence of an opposing opinion from Billowitz, there is no tenable basis for saying that the sentencing panel's conclusion regarding the impact of this mitigating factor-or, for that matter, any other mitigating factor-would have been different.
More, the claimed prejudice expressed in Bertschinger's affidavit cannot be squared with a central feature of his testimony-that he could not diagnose Brooks' mental condition at the time of the murders without information directly from Brooks, which Brooks could not provide in view of his claimed amnesia. See, e.g., JA 1114 (“[W]ithout information from Mr. Brooks, there is no way I can give an opinion with reasonable medical certainty either on the issue of sanity ... and certainly not on the issue of mitigation.”). How, if Bertschinger needed information directly from Brooks, information provided by other people about events mainly occurring two or so years before the murders could have swayed his conclusions is not explained.
Which leads to the last problem with Brooks' reliance on Bertschinger's affidavit: the essence of Bertschinger's mitigation testimony (and a central theme of counsel's mitigation strategy) was that Brooks' amnesia made it impossible to know his state of mind on the day of the murders, precluding anyone from concluding that the aggravating factors outweighed an unknowable and significant mitigating factor. That reasonable strategy was consistent with Bertschinger's testimony that he could not diagnose Brooks with schizophrenia without speaking to him directly about the day of the murders. Yet the strategy of Brooks' habeas petition (and the theory of Bertschinger's affidavit) is that a diagnosis based on collateral information primarily from two or more years before the murders could be made even without the assistance of Brooks, a strategy that surely has a “double edge” to it when it comes to Brooks' reasonable trial strategy, Wiggins, 539 U.S. at 535, 123 S.Ct. 2527, making a reasonable possibility of prejudice still more implausible.
Affidavits of Azeem Bey (Brooks' stepfather), John Brooks (Brooks' uncle) and Joyce Robinson (Brooks' former co-worker and a friend of Beverly Brooks). These affidavits all fail to advance Brooks' claim. While they say that Brooks' counsel did not contact them during his criminal trial, they do not, as the state court of appeals explained, “state what [specific or new] information the witness[es] would have provided if contacted before trial.” Brooks, 1999 WL 401655, at *5. In the absence of this information, these affidavits cannot establish prejudice.
Affidavits of Patricia Walsh, Richard Vickers and Stephen Aarons (attorneys). Nor is Brooks aided by the affidavits of attorneys who were not involved in the guilt or sentencing phase of this case and who now criticize the performance of the three-judge panel and of Brooks' counsel and his experts. Walsh's affidavit, for its part, does not even allege that Brooks' counsel failed to investigate Brooks' background or failed to provide specific information to the mental-health experts who evaluated Brooks, but rather contains largely conclusory allegations of other errors committed by Brooks' counsel and by the three-judge panel. Vickers' affidavit contains similar flaws and undermines Brooks' claim by including information concerning Angelotta's investigation that substantially refutes several of Brooks' and the other affiants' contentions about who spoke to whom. Aarons' affidavit does not establish prejudice because it fails to explain how additional evidence relating to Brooks' schizophrenia could have changed the sentencing panel's conclusion.
Affidavit of Dr. Nancy Schmidtgoessling (clinical psychologist). Submitted by a psychologist not involved with Brooks' trial, this affidavit alleges errors committed by Brooks' counsel and his experts. Schmidtgoessling says that Brooks' counsel failed to make “contact with [his] employers ... and immediate family other than brief contact with Brooks' brother,” failed to discover “Brooks' belief that he was being poisoned at work” and did not present adequately Brooks' paranoid schizophrenia as a mitigating factor. But the record-Angelotta's itemized statement and Bertschinger's testimony-casts doubt on several of Schmidtgoessling's allegations. Even then, the affidavit does not establish prejudice because it fails to explain how or why a more “detailed, integrated picture of Brooks and his psychological functioning” could have persuaded the panel to give Brooks a life sentence in view of the information about his mental-health history that the panel heard.
Affidavits of Raymond Goodwin and Gary Cartwright (Utah prison officials) and Donald Williamson (Brooks' high school friend). The affidavits of the Utah prison officials who worked in the facility where Brooks was held pending extradition to Ohio indicated that Brooks' “behavior at all times was highly appropriate,” that Brooks “[a]t no time ... display[ed] violent or negative behavior towards his jailors or other prisoners” and that Brooks “remained quietly in his cell unless requested to leave.” This information does not offer any glimpse into Brooks' state of mind before the murders and hardly suggests that he was actively psychotic and delusional on the day of the murders. The affidavit of Donald Williamson, one of Brooks' high school friends, also had a two-sided edge to it. Although it said that Brooks appeared “wild” and “crazy” after he fought with his kids, it also said that Brooks thought his children “tried to physically intimidate him” and that Williamson told Brooks “to discipline his sons so that they would not be disrespectful.” These latter statements would have buttressed the sentencing panel's conclusion that Brooks “execute[d his children] through a twisted sense of jealousy, hatred, or despair,” as would the information about Brooks' attitude toward his oldest son's trophies and alleged incestuous relationship with Beverly.
Brooks' claim is not only susceptible to being divided and conquered one affidavit at a time, but it also does not show prejudice when the affidavits are grouped together. In determining that the aggravating factors outweighed these mitigating factors, the sentencing panel concluded that Brooks' schizophrenia “did not cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.”
Considerable evidence supported the conclusion that, in the days leading up to the March 6th murders and in the days following them, Brooks knew just what he was doing. On February 24, Brooks obtained a Visa card and took out a cash advance of $140 from the account. The following day, he purchased a gun for $125. On March 4, Beverly served Brooks with divorce papers, after which he told Beverly that “he was going to burn the papers” and “that if he didn't know better that he would be afraid of himself.” Two days later, shortly after Beverly left for work, Brooks turned up the stereo in the house-to “muffle the sound of the gunshots” and thus keep the upstairs neighbors from hearing them, Brooks, 495 N.E.2d at 414-and shot his sons in the head while they lay sleeping.
Brooks' actions immediately after the killings also suggest that he knew what he had done and shamelessly but cogently did not want to be held responsible for it. That same afternoon, he fled Cleveland on a bus bound for Las Vegas. When apprehended by authorities two days later, Brooks “admitted ownership of an innocuous suitcase found in his possession on the bus” and “stated then that it was his only luggage,” but he “didn't tell the police of the luggage containing the murder gun and ammunition and denied any connection to it when it was found and he was confronted with it.” Brooks also had his high school diploma and his birth certificate with him at the time.
Confronted with these facts, the trial court “rejected [Brooks'] claim of psychogenic amnesia,” concluding that Brooks' “denials were lies, not memory lapses.” In view of Brooks' behavior shortly before and after the crime, the court also concluded that, even though Brooks suffered from schizophrenia, his “mental illness or defect did not cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.” Stated differently, the court acknowledged that Brooks was suffering from schizophrenia but nonetheless relied upon the evidence of Brooks' behavior shortly before and after the murders to conclude that he willingly, and with “the ability to refrain,” “chose to take a gun to the heads of his three sons and execute them through a twisted sense of jealously, hatred, or despair.” The court of appeals and supreme court reached the same conclusion. See Brooks, 495 N.E.2d at 414; Brooks, 1985 WL 8589, at *12.
Placed in the context of this evidence of Brooks' calculated actions on the one hand and of his strange behavior and schizophrenia on the other, Brooks' undiscovered background evidence-his brother's schizophrenia and Beverly's three additional examples of unusual behavior (Brooks' belief in voodoo, his accusations regarding incest and his actions related to his son's trophies)-does not offer a basis for concluding that this new evidence would have tilted the verdict. It does nothing to alter the unchallenged point that his actions revealed a clear awareness of what he was doing and a desire to avoid responsibility for it. At bottom, the new evidence thus does not “differ in a substantial way-in strength and subject matter-from the evidence actually presented at sentencing.” Hill, 400 F.3d at 319.
Another problem with the affidavits is that they did not present evidence concerning Brooks' state of mind immediately around the time of the murders. Beverly's affidavit, for instance, referred almost exclusively to events that occurred in 1976-80-at least two years before the murders. Even accepting that Beverly's affidavit presented some previously unknown information, we fail to see how this evidence would have changed the panel's decision. Bertschinger's own testimony indicates that such evidence “would serve little benefit, frankly, without also information directly from the defendant” because “it would not tell [him] directly and concisely about [Brooks'] mental state during the time of the offense, and that is what [he was] concerned with.” Bertschinger explained: “I am primarily concerned as a forensic psychiatrist about [Brooks' state of mind] that morning of the murders and particularly more related to when that trigger was pulled.... The best I have [regarding Brooks' state of mind at that time] is from Mrs. Brooks that [Brooks] appeared reasonably intact from her observations on the night before or the morning before. That is all I have, and without information from Mr. Brooks, there is no way I can give an opinion with reasonable medical certainty either on the issue of sanity, if we were dealing with that, and certainly not on the issue of mitigation.” (emphasis added).
The sentencing panel reasonably concluded that, regardless of whether Brooks had schizophrenia of any type at the time of the murders, his actions during the hours, days and weeks before and after the murders indicate that he knew what he was doing, knew that it was wrong and could have stopped himself from doing it. See Brooks, 495 N.E.2d at 415 (“The court of appeals realized that appellant suffered from some form of schizophrenia but found appellant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.... This court finds that the trial court and court of appeals did not err in concluding that the aggravating circumstances of the crime outweigh any mitigating factors.”) (emphasis added). Thus, even if the affidavits suggested that Brooks was more actively schizophrenic at the time of the murders than the evidence at trial showed, the post-conviction court of appeals reasonably determined that the panel's decision would have been the same.
III.
For these reasons, we affirm.