State v. Brooks

• Decision Date: 23 July 1986
• Docket Number: No. 85-1616,85-1616
• Citation: 25 Ohio St.3d 144,495 N.E.2d 407,25 OBR 190
• Parties: , 25 O.B.R. 190 The STATE of Ohio, Appellee, v. BROOKS, Appellant.
• Court: Ohio Supreme Court

Page 144

25 Ohio St.3d 144

495 N.E.2d 407, 25 O.B.R. 190

The STATE of Ohio, Appellee, v. BROOKS, Appellant.

No. 85-1616.

Supreme Court of Ohio.

July 23, 1986.

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 , 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 ¹ 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.

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:...