Brookins v. State ( 2022 )

In the Supreme Court of Georgia
Decided: October 4, 2022
S22P0556. BROOKINS v. THE STATE.
BETHEL, Justice.
A jury found Brian Duane Brookins guilty of the murders of
Sandra Suzanne Brookins and Samantha Rae Giles and of related
crimes. The jury declined in its guilt/innocence phase verdict to find
Brookins “mentally retarded” or “mentally ill.” 1 At the conclusion of
the sentencing phase, the jury found multiple statutory aggravating
circumstances and sentenced Brookins to death for each of the two
1At the time of Brookins’s trial in 2007, both Georgia law and the mental
health profession used the term “mental retardation” rather than the now-
preferred term of “intellectual disability.” See Hall v. Florida, 572 U. S. 701,
704 (I) (134 SCt 1986, 188 LE2d 1007) (2014) (noting the change in
terminology); OCGA § 17-7-131 (as amended in 2017 by Ga. L. 2017, p. 471, §
3). We use both terms in this opinion, using “intellectual disability” when
speaking in general terms and using “mental retardation” in our discussion,
particularly in our quotations, of the specific proceedings below and the law
that applied at that time.
murders. For the reasons set forth below, we affirm Brookins’s
convictions and sentences.2
2 The crimes occurred on October 14, 2005. On January 9, 2006, Brookins
was indicted by a Baldwin County grand jury on two counts of malice murder,
two counts of felony murder, aggravated stalking, cruelty to children in the
third degree, and possession of a firearm by a convicted felon. On February 6,
2006, the State filed written notice of its intent to seek the death penalty.
Brookins’s trial began with jury selection on October 1, 2007, the jury found
him guilty on all counts on October 13, 2007, and the jury recommended death
sentences in a sentencing verdict on October 16, 2007. Later on October 16,
2007, the trial court vacated, by operation of law, the two felony murder counts
and sentenced Brookins to death for each of the two counts of malice murder
and to consecutive terms of imprisonment of ten years for the one count of
aggravated stalking, one year for the one count of cruelty to children in the
third degree, and five years for the one count of possession of a firearm by a
convicted felon. On November 8, 2007, Brookins filed a motion for a new trial,
which he amended on May 27, 2011, and which the trial court denied in an
order filed on April 10, 2012. On June 6, 2012, the trial court filed an order
granting Brookins’s motion for an out-of-time appeal, and Brookins then filed
a notice of appeal on June 12, 2012. This out-of-time notice of appeal would
have been untimely in an ordinary criminal appeal, see Cook v. State, 313 Ga.
471, 503-504 (3) (e) (870 SE2d 758) (2022); however, upon receiving briefing
from the parties at our specific request, we adhere to our previous holding that
the absence of a valid notice of appeal does not deprive this Court of jurisdiction
to fully consider all enumerations of error on appeal in a case where a death
sentence has been imposed, see Lance v. State, 275 Ga. 11, 11 n.1 (560 SE2d
663) (2002) (citing OCGA § 17-10-35 and UAP Rule IV (A) (3)), overruled on
unrelated grounds by Willis v. State, 304 Ga. 686, 707 n.3 (11) (a) (820 SE2d
640) (2018)). On November 13, 2013, Brookins filed a supplemental motion for
a new trial or, alternatively, for reconsideration of the order denying the
amended motion for a new trial, and the trial court denied that motion in an
order filed on June 25, 2021. An appeal was docketed in this Court on October
18, 2021, as Case No. S22P0235; however, on December 10, 2021, this Court
struck the appeal from its docket and remanded the case in order to return
jurisdiction to the trial court to consider matters that occurred after Brookins’s
filing of a notice of appeal. On January 5, 2022, the trial court filed a reissued
2
Sufficiency of the Evidence in the Guilt/Innocence Phase
1. (a) The evidence of Brookins’s guilt, which was essentially
conceded by Brookins at trial, showed as follows. 3 Brookins was
married to Sandra Suzanne Brookins, and Samantha Giles was his
15-year-old stepdaughter. The couple had been having marital
difficulties, and they had started divorce proceedings that were later
stopped. A county solicitor, acting in her official capacity, had met
Ms. Brookins in 2000 and had counseled her about her concerns for
her safety. Others had done likewise.
On September 14, 2005, Brookins had been arrested for
stealing “four-wheelers.” While in jail, Brookins told two fellow
order denying Brookins’s supplemental motion for a new trial or, alternatively,
for reconsideration of the order denying the motion for a new trial. Upon this
Court’s receiving the record of the remand proceedings, the case was
redocketed to the term of this Court beginning in April 2022 under the current
case number, and Brookins filed a new notice of appeal on January 18, 2022.
The case was orally argued on May 17, 2022.
3We note here that this Court no longer engages in the sua sponte review
of the sufficiency of the evidence in murder cases that have not resulted in
death sentences. See Davenport v. State, 309 Ga. 385, 391-399 (4) (846 SE2d
83) (2020) (“[O]ur new approach of not automatically considering sufficiency
sua sponte in non-death penalty cases will begin with cases docketed to the
term of court that begins in December 2020.”).
3
inmates, referring to Ms. Brookins, that he was going to “kill that
snitchin’ b***h,” and he told a third inmate that the best thing the
county solicitor could do would be to keep him in jail, because he was
“going to kill the b***h” and her “whole family” and then “go after”
the solicitor next if he got the chance. Brookins was released on
bond on October 5, 2005, subject to the condition that he have no
contact with Ms. Brookins or Samantha. Ms. Brookins was afraid
at that time because, as she had reported to a detective and to a close
friend, Brookins had called her from the jail accusing her of
reporting him to the detective concerning the stolen “four-wheelers.”
In the days leading up to the murders, including finally on
October 12, 2005, Brookins repeatedly asked the girlfriend of one of
his former fellow inmates if he could buy her .38 caliber revolver.
The woman resisted but eventually sold Brookins the gun, which the
woman identified at trial as being the same as the weapon used by
Brookins in the murders.
Also on October 12, Ms. Brookins, who had been staying at her
mother’s house with her children for safety, called the detective to
4
report that her home had been broken into and a shotgun had been
taken from her bedside and that she suspected Brookins because “he
knew it would upset her” and because there were no signs of forced
entry. She called the detective again later that day to report another
burglary of her home involving a television, a DVD player, and a
video game. Also on or about October 12, a neighbor who lived next-
door saw Ms. Brookins arrive at her home, saw Brookins come out
of the home, heard Ms. Brookins telling Brookins to leave because
he was not supposed to be there, and saw Ms. Brookins back up in
her car and leave.
On the morning of October 14, a neighbor who lived “five or six
houses down” from Ms. Brookins observed Brookins driving past Ms.
Brookins’s home “[p]robably nine or ten times” without stopping. At
around noon on October 14, the neighbor who had seen Brookins on
October 12 was arriving home from a store and saw Brookins on the
front porch of Ms. Brookins’s home and called the sheriff’s office, as
Ms. Brookins had asked her to do. However, after Brookins saw her
and walked to the back of Ms. Brookins’s house and after she waited
5
15 minutes for a sheriff’s officer to arrive, she left.
Sometime between 1:00 and 3:00 p.m. on October 14, Brookins
visited a pawn shop. Brookins asked if they had “any AKs or SKSs”
and explained that he wanted such an assault rifle for deer hunting.
However, Brookins left when he was told that the store had no
assault rifles in stock.
At roughly 2:00 p.m. on October 14, the next-door neighbor who
had seen Brookins at noon returned home and again saw Brookins,
this time standing toward the back of Ms. Brookins’s house. Later,
this neighbor was looking out her window and saw Ms. Brookins and
Samantha arriving and then heard two groups of gunshots.
Also on October 14, a man was talking on his cellphone in the
back yard of his mother’s home, which was next door on the other
side of Ms. Brookins’s home. Sometime around 2:30 or 3:00 p.m., he
observed Ms. Brookins, with Samantha in her car, pulling into her
driveway and then honking and waving to him as she passed the
side of her home. However, when Ms. Brookins got to the back of
her home, he saw her immediately back up to the front of her home,
6
turn her car around to face the road, and park near the front door, a
place where he had never seen her park before. He walked down a
path between the homes to Ms. Brookins’s yard and saw Brookins
coming from the far end of the home holding a pistol in one hand,
heard Brookins repeatedly yelling “you mother f***ing b***h” at Ms.
Brookins, heard one shot, saw Ms. Brookins on the ground with
Brookins “kicking and stomping her,” and saw Brookins shoot her
again. As the neighbor ran toward his mother’s home, he turned
and saw Samantha running behind him. After he slammed his
mother’s door shut, he heard another shot. He had his mother and
other family members get on the floor, tried unsuccessfully to call
911, scrambled around looking out windows, and heard yet another
shot. From the window of a door in the back of his mother’s house,
he saw Samantha lying in the middle of the path between the two
homes. He then went outside to the driveway and saw Brookins
driving up the road in Ms. Brookins’s car. All three members of a
family that lived across the street from Ms. Brookins also saw parts
of the crimes, and they identified Brookins as the perpetrator.
7
Tire impression evidence and witness testimony showed that
Brookins drove Ms. Brookin’s car from Ms. Brookins’s home after
the murders to a place near some train tracks, where he had parked
his truck before walking about 17 minutes to Ms. Brookins’s home
on a “four-wheeler” path through some woods. From there, Brookins
drove in his truck to his parents’ home, where he threatened suicide.
The sheriff and another officer talked to Brookins in his parents’
driveway for about an hour before Brookins placed his pistol in the
back of his truck and was arrested.
Officers who arrived at the scene of the murders found Ms.
Brookins’s body lying face down on the ground near the steps to her
front porch and Samantha’s body partially curled-up and lying face
down on the path leading to the neighbor’s home. An autopsy
showed that Ms. Brookins had gunshot wounds to her right breast,
to her left elbow, and to the back of her head. An autopsy also
showed that Samantha had gunshot wounds to her lower back and
to her right side that were not from close range, along with a third
gunshot wound an inch and a half above her right ear with a
8
gunpowder-stippling pattern consistent with the shooter having
stood over her while firing. A firearms examiner determined that
the bullets that killed the victims were fired from the .38 caliber
revolver obtained from Brookins at his surrender to the sheriff. The
firearms examiner also determined that the shot to Samantha’s
head was fired from no more than 15 inches and likely from 4 to 6
inches.
(b) Brookins and the State presented competing evidence and
arguments regarding Brookins’s claims that he was intellectually
disabled and that he was mentally ill. See OCGA § 17-7-131 (a) (2)-
(3) (defining these mental conditions both before and after a
reordering of the relevant sections by Ga. L. 2017, p. 471, § 3). On
behalf of the State, a number of non-expert witnesses gave
testimony that shed light on Brookins’s day-to-day abilities and
activities, such as the fact that he was very knowledgeable about
cars and was adept at repairing them, that he readily carried on
conversations about his own legal issues and other matters, and that
there was nothing at all noticeable about him that suggested mental
9
impairment. Brookins’s childhood school psychologist testified that
he had known Brookins and had evaluated him at the ages of 7, 10,
and 13 and that Brookins’s IQ scores at those times were 92, 84, and
90, respectively. He explained that Brookins was diagnosed as
having a learning disability based on his difficulty processing
information presented audibly, but he added that even in his
weakest area, his language skills, Brookins was operating at least
at a low-average level. He testified that there had been no reports
of any problems with Brookins’s adaptive functioning and that
Brookins’s shortcomings were conduct-related rather than based on
intellectual or even emotional factors. Specifically, he cited reports
that, in addition to being frustrated, Brookins had been
manipulative, unwilling to exert effort, unwilling to accept
responsibility for his actions, defiant, and oppositional.
A psychiatrist from Central State Hospital gave Brookins the
following diagnoses, including some indicating that he was
“malingering” or feigning symptoms: Panic Disorder without
Agoraphobia; Malingering of Psychotic Symptoms; Malingering of
10
Dissociative Symptoms; Adjustment Disorder, Chronic, with Mixed
Anxiety and Depressed Mood; Attention Deficit Hyperactivity
Disorder, Predominantly Hyperactive-Impulsive Type; Alcohol
Abuse by History and Benzodiazepine Abuse; Antisocial Personality
Disorder; Borderline Personality Disorder; and Borderline
Intellectual Functioning. She explained that neither of Brookins’s
personality disorders rendered him incapable of understanding and
making choices in the realm of criminal behavior. As to intellectual
disability, she testified that Brookins’s IQ had been tested as 72 by
her colleague, but she explained that, based on her 14 hours of
talking with him, she had expected an IQ score “probably in the mid-
80s.” She explained that she did not find Brookins to suffer from
any deficits in adaptive functioning resulting from any intellectual
deficit. Instead, she found his adaptive deficits in the areas of
finances, health, and personal safety to have been the result of his
Antisocial Personality Disorder. She acknowledged that Brookins
had mood swings and had been previously diagnosed several times
with Bipolar Disorder, but she explained that those prior diagnoses
11
had been based largely on his inaccurate self-reporting, that his
“objective symptoms” did not support such a diagnosis, and that his
observable symptoms seemed better explained by his Borderline
Personality Disorder. She also disagreed with Brookins’s prior
diagnosis of Intermittent Explosive Disorder, concluding that his
related symptoms were better explained by his Borderline
Personality Disorder and his Antisocial Personality Disorder. She
acknowledged that Brookins had suffered multiple head traumas
during his lifetime, but she noted that those incidents had not
seemed to cause any personality changes, such as increased
aggressiveness, because he had exhibited the same demeanor prior
to his head traumas. Finally, she explained that Brookins had been
given an MRI scan of his brain but that it had been interpreted by a
radiologist at Central State Hospital as normal.
A psychologist from Central State Hospital testified that he
had given an intelligence test to Brookins showing a score of 71, with
a range of scores within the standard error of measurement of 65 to
79, and that he had given another, more-precise intelligence test
12
showing an IQ of 72, with a range of scores of 68 to 77. He rejected
the theory, highlighted in Brookins’s opening statements, known as
the “Flynn Effect” that some experts have used to lower IQ scores
from those actually tested where the test involved has not been
normed to the overall population recently, noting that the theory
was not endorsed by the publisher of Brookins’s IQ test and that
some studies of recent population trends have even shown that IQ
scores on aging tests should be adjusted upward. He testified that
he saw no signs of psychiatric symptoms but that he had found
instead that Brookins had feigned some such symptoms.
Specifically, he testified that he thought that Brookins was
“malingering symptoms of a psychotic nature” and that he did not
believe that Brookins “was suffering from manic phase or Bipolar
Disorder.” He explained that he had not observed malingering by
Brookins on his intelligence evaluation, but he added that he could
not rule that out. Finally, he testified that he disagreed with
Brookins’s prior diagnoses of Intermittent Explosive Disorder based
on Brookins’s “pattern of behavior.”
13
The defense presented testimony first from a woman who had
been Brookins’s “learning disabilities resource room teacher in the
2nd and 3rd grades.” She worked with him on only “language arts
subjects” for two hours a day, while some students with more
problems would see her for four hours a day. She described him as
“a typical little boy” and noted that he showed good progress in
language arts under her instruction and that he had never shown
any problems in math or in any other area other than language arts.
Finally, she stated that she found the school psychologist’s findings
to be correct.
The defense next presented testimony from a psychologist who
had evaluated Brookins over a total of 17 hours. He testified that
Brookins “had a receptive language disorder and an expressive
language disorder.” He explained that his testing of adaptive
functioning showed deficits in the areas of communication, daily
living, and socialization. He also explained that a particular test of
Brookins showed a score “almost identical” to those with
“documented brain injuries,” that his symptoms were “very common
14
among people that have partial complex seizures,” and that he
showed evidence of dementia or “a deteriorating brain.” He
acknowledged that he had relied on low IQ test scores from 2001 and
2004 but had only recently learned about eight test scores from
before 2001; however, he questioned whether Brookins’s decline in
IQ scores might have stemmed from “various sources including his
partial seizure aspect that is continuing” and might have occurred
prior to the age of 18. He explained that Brookins’s scores on one
test could be interpreted as his being distractible, being confused,
having poor memory, “being bipolar and paranoid,” or “hav[ing] been
exaggerating some symptoms.” Finally, he stated that he believed
that Brookins suffered from Post-Traumatic Stress Disorder.
Brookins next presented testimony from a neuropsychiatrist.
He explained that it was unusual for someone’s IQ scores to decline
as Brookins’s had done. He favorably noted Brookins’s prior
diagnoses of Antisocial Personality Disorder and Attention Deficit
Hyperactivity Disorder, and he also briefly noted Brookins’s other
prior diagnoses, which were not accepted by the State’s experts, of
15
Bipolar Disorder and Intermittent Explosive Disorder. He agreed
with the radiological diagnosis of spina bifida reached at Central
State Hospital based on an abnormality in Brookins’s lower spine,
and he faulted Brookins’s mental health team for not taking special
note of that diagnosis and expressed his own opinion that the
diagnosis was “unambiguous proof that [Brookins’s] brain did not
develop properly.” He also disagreed with the conclusion of the
radiologist at Central State Hospital that an MRI scan of Brookins’s
brain showed nothing abnormal, concluding instead that it showed
portions of “dead brain, scarred useless brain” in the frontal lobe
that he referred to as leukoaraiosis, that he explained was
comparable to what is found in elderly patients with dementia, and
that he posited had occurred as a child or as a young adult, “many,
many years in advance to the time of this incident.” He summarized
the effects of his findings as follows:
Mr. Brookins has had many diagnoses, okay. ADD,
antisocial or psychopathy, bipolar, intermittent explosive
disorder. What are the common themes of all of those?
Impulse control problems, anger problems, mood control
problems. Constantly doing the wrong thing, in spite of
16
ample opportunity to learn to do the right thing.
Especially given ample punishment, such as all the
incarcerations and his, you know, run-ins with the law.
This is typical of someone with frontal lobe injury. They
just don’t get it and they don’t learn and they keep doing
the same wrong thing, because their brain won’t let them
do the right thing.
The defense next presented lay testimony from Brookins’s
brother, sister, and mother. His brother testified that Brookins
would “lose his temper quicker than . . . the average person” and
would make decisions impulsively, “especially if it . . . had to do with
him getting upset or getting angry.” His sister explained that
Brookins “was always more aggressive” than others, “didn’t learn
easily,” and “became a bully” as he got older, perhaps because he
thought it “was cooler to be a bully than to be . . . less intelligent.”
She also stated that the family “knew something was wrong with
him” but “didn’t talk about it,” that she “always knew that [he]
would hurt somebody,” and that “he couldn’t get along with
anybody.” His mother explained that Brookins “started having
problems . . . in kindergarten” and had to repeat it because he was
deemed “immature”; that, “as things progressed in school, he was
17
referred to special ed”; that he repeated third grade because of
problems with his “reading comprehension skills”; and that “[h]is
problems really started once he reached about adolescence.” She
explained that “he was overly aggressive” and that she would
“sometimes . . . wonder how [his brother] would survive him” and
would have to punish him for “hurting” his brother. She attributed
“a lot of his problems to being incarcerated so much, because every
time he would go in and he would come out, he would be worse,” to
the point that he became “disrespectful” and “verbally abusive”
toward her and her husband and would have “more problems getting
along with people” generally. She explained that she and Suzanne
Brookins, the adult victim, both believed that he might do better if
he found the right medication and took it regularly, and she found
him to be “calm” and “rational” since he had been jailed and
presumably had been taking the right medication. She stated that,
prior to the murder, Suzanne Brookins’s “family didn’t want her
with him anymore” because “[t]hey realized that he could be a
danger.”
18
As a rebuttal witness, the State presented testimony from the
radiologist at Central State Hospital who had interpreted Brookins’s
x-rays and MRI scans. He described an “incidental finding of spina
bifida occulta,” which he described as “a failure of closure of the
spine at the very bottom part of it,” as “a very common congenital
anomaly” that he sees “often,” and as something that would not have
affected brain development. He explained that he found Brookins’s
MRI to be “within the limits of normal” and that he “saw no evidence
of trauma” to the brain, saw no shrinkage of any part of the brain,
saw no reduction in blood flow or volume to any part of the brain,
saw no evidence of stroke or stroke-like symptoms, saw no
premature aging or deterioration, and saw no evidence of any other
chronic problem that might have affected the brain. He
acknowledged that he saw two white dots on one of the MRI images,
but he opined that “they’re not in the frontal lobe at all” but instead
were “within the spinal fluid part of the brain . . . in the frontal horn
of the lateral ventricle.”
19
The State’s rebuttal witnesses also included testimony from
the owner of a used car store who had employed Brookins as a
mechanic for about three months and had found him to be as capable
as his other mechanics. The State presented testimony from a jail
nurse who explained that Brookins had not been allowed to take his
personal Xanax during his three-week incarceration because of the
addictive nature of that drug, that he was provided other
medications deemed suitable that he took at all but three scheduled
times, and that his personal medications were returned to him on
the day after his release on bond. She also testified that she
observed no symptoms like those that she had observed in
intellectually disabled or mentally ill persons. The State presented
testimony from Brookins’s first, sixth, seventh, and eighth grade
teachers, who explained that he had attention problems, was
enrolled in a special education resource program but solely for his
language arts skills, and did not exhibit signs of intellectual
disability or mental illness.
20
The State presented further rebuttal testimony from the
neurologist at Central State Hospital, who explained that he found
in Brookins no lapses of memory, no defect in reasoning, no defect
in the peripheral nervous system, no evidence of brain damage, and
no other abnormalities. The State presented testimony from a
diagnostic counselor who explained that Brookins could not have
been admitted to the custodial boot camp program where she worked
if he had “any mental health program” and that she had seen no
signs in him of intellectual disability or mental illness. Next, the
“diagnostic unit manager at Baldwin State Prison” explained that
Brookins had been diagnosed with Bipolar Disorder one time but
had been diagnosed four other times without it, explained the
results of his various academic assessments, and testified that
Brookins’s IQ scores from his various incarcerations had ranged
from 94 to 105, albeit on the Culture Fair test that was only used to
make a “ballpark” assessment. Finally, the State’s rebuttal case
included testimony from a jail administrator that, during five
months of observing Brookins, he had seen him programming a
21
remote control for a new television, acting as the “banker” in
frequent games of “Monopoly,” helping other inmates fill out forms
for the jail store, playing a card game that appeared to be poker, and
aptly advising a deputy on how to weld a basketball hoop.
The defense recalled two of its original witnesses in response
to the State’s rebuttal case. The defense psychologist explained that
the Culture Fair test was not “an individually administered IQ test,”
that it had been modified to be more suitable to “rehabilitation
settings,” and that it “was submitted to a whole new scoring system
that’s about 30 to 40 points higher than real IQ tests.” And, finally,
the defense’s neuropsychiatrist was recalled to the stand and
testified that it was “ludicrous” for the State’s radiologist to conclude
that there was no scarring of the brain visible on Brookins’s MRI
and that he was “stunned and shocked” that the State’s radiologist
had asserted that the white areas on the MRI were not located in
the frontal lobe. He asserted instead that the white areas were
“abnormal,” “should not have been there at [Brookins’s] age,” were
actually “capping on the tips of the fluid filled spaces in the frontal
22
lobe,” and could not be “brain fluid.”
(c) Upon our review of the record and upon our consideration
of Brookins’s arguments regarding his alleged “mental retardation”
and “mental illness,” we conclude that the evidence presented in the
guilt/innocence phase was sufficient to authorize a rational trier of
fact to find beyond a reasonable doubt that Brookins was guilty of
the charges of which he was convicted and to decline to find4 that he
4 The trial court acknowledged that the statutorily prescribed burden of
proof for “mental retardation” and “mental illness” claims rests on defendants
under the beyond a reasonable doubt standard. See Young v. State, 312 Ga.
71, 88 n.9 (25) (b) (860 SE2d 746) (2021), cert. denied, __ U. S. __ (142 SCt
1206, 212 LE2d 215) (2022). However, the trial court allowed the parties to
mutually consent to the jury’s being charged that the burden rested on
Brookins under merely a preponderance of the evidence standard. It might be
understandable for the State and the trial court to have hoped to exercise, as
the State described it, “an abundance of caution” as to the standard of proof in
light of the arguments afoot at the time suggesting that the statutorily
prescribed standard was unconstitutional. See id. at 128 (Nahmias, C. J.,
concurring specially) (“[W]hen we enter the realm of Eighth Amendment
‘evolving standards of decency,’ if there is not a holding from a United States
Supreme Court case directly on point, a lower court trying to understand what
validly enacted state laws that Court will decide the United States
Constitution has morphed to nullify must guess about what the majority of
Justices currently serving on that Court will decide when a particular new
issue is presented to them.”). However, we note that this Court has yet again
definitively resolved such claims in favor of the General Assembly’s chosen
standard, and we expect that standard to be followed in future trials. See id.
at 87-100 (25) (plurality opinion in an 8-to-1 decision to affirm) (“Seeing no
clear direction in the law to hold otherwise, we adhere to our prior decisions
upholding Georgia’s standard of proof.”).
23
was “mentally retarded” or “mentally ill.” See Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)
(providing the constitutional standard for the review of the
sufficiency of the evidence of a crime); King v. State, 273 Ga. 258,
259 (1) (539 SE2d 783) (2000) (reviewing the sufficiency of the
evidence regarding alleged intellectual disability); UAP IV (B) (2)
(providing that, in all death penalty cases, this Court will determine
whether the verdicts are supported by the evidence).
Issues Related to the Guilt/Innocence Phase
2. Brookins argues that the sheriff of Baldwin County
impermissibly served both as a key witness and as a caretaker of the
jury in violation of his constitutional rights to an impartial jury and
to a fair trial. See Turner v. Louisiana, 379 U. S. 466, 471-474 (85
SCt 546, 13 LE2d 424) (1965) (concluding that a constitutional
violation occurred where a trial court overruled a defendant’s
objection to testimony by two deputies who also served as bailiffs).
We conclude that there is no reversible error as to this claim.
24
The record shows that throughout Brookins’s trial the sheriff
of Baldwin County was responsible, at least ultimately, for
arranging the jurors’ transportation, for arranging their meals, and
for logistical matters such as their access to telephones, televisions,
and computers. To no one’s surprise, the sheriff was called to testify;
however, Brookins raised no objection at trial to his testimony or to
his service with regard to the care of the jury. 5 The sheriff’s
testimony was largely focused on the details of the standoff with
Brookins at his parents’ house, where he threatened suicide but
eventually surrendered. The sheriff, who knew both the victims and
Brookins, also gave two responses indicating that Brookins had
appeared coherent and lucid in the sheriff’s past conversations with
him and that the sheriff “never had a problem communicating with
him.” Because Brookins failed to raise an objection as to this issue,
it is waived for the purposes of ordinary appellate review. See
5We note that, in response to Brookins’s motion for an “impartial witness
monitor,” the State agreed that bailiffs in plain clothes and not sworn sheriff’s
deputies would monitor the witnesses. However, we do not regard this motion
as constituting any objection to the sheriff’s testimony or his role in caring for
the jury.
25
Martin v. State, 298 Ga. 259, 278-279 (6) (d) (779 SE2d 342) (2015),
disapproved on other grounds by Willis v. State, 304 Ga. 686, 706
(11) (a) n.3 (820 SE2d 640) (2018); Hudson v. State, 250 Ga. 479,
484-485 (5) (299 SE2d 531) (1983) (determining that no reversible
error existed where no objection was made to the trial court’s
“sending the jury to lunch with the sheriff”). Furthermore, in light
of Brookins’s clear position at trial that he was not contesting his
guilt and in light of the limited nature of the sheriff’s testimony
about his ability to communicate with Brookins, we conclude that
this claim does not change our analysis in our Sentence Review
below. See Martin, 298 Ga. at 279 (6) (d) (“That plenary review
guards against any obvious impropriety at trial, whether objected to
or not, that in reasonable probability led to the jury’s decision to
impose a death sentence.”). See Bass v. State, 285 Ga. 89, 93 (674
SE2d 255) (2009) (“Under the circumstances in this case, we conclude
there is a reasonable probability that the outcome of the trial would
have been different if defense counsel had objected to the trial court’s
decision to allow Wilson, a key prosecution witness, to serve as
26
bailiff.” (emphasis supplied)).
3. Brookins argues that the trial court impermissibly allowed
testimony about his attempt to purchase an assault rifle on the day
of the murders. We disagree.
The State presented testimony from the co-owner of a pawn
shop explaining that, between 1:00 p.m. and 3:00 p.m. on the day of
the murders, Brookins entered the shop and “asked if [they] had any
AKs or SKSs.” She further explained that Brookins claimed that he
was planning to use such an assault weapon for deer hunting and
stated that, “if you use the right ammunition, you know that when
you hit it, it’s going to hit the ground.” When Brookins objected to
the State’s plan to show a similar weapon to the witness and the
trial court expressed an inclination to grant the motion, the State
agreed not to do so.
Later, when Brookins noted that the assault weapon was still
in the courtroom, the State agreed to remove it.6 Later still, the
6 It is unclear from the record whether the assault rifle was visible to the
jury.
27
State asked its firearms expert about the bulletproof vests typically
worn by police officers, and the expert explained that an “AK or
SKS” would be capable of “go[ing] through a bullet proof vest with
great ease.” The State also presented testimony from other
witnesses showing that Brookins had a history of personal conflict
with Suzanne Brookins’s brother, who was an officer with the
sheriff’s office, and testimony from one of Brookins’s jail mates
claiming that Brookins had stated that he was going to kill Suzanne
Brookins’s “whole family” and that Brookins had “mentioned high
hatred for [her brother],” which connected the testimony about how
an assault rifle can pierce the bulletproof vest of a police officer
specifically to one of Brookins’s intended victims.
Given how the testimony regarding Brookins’s attempt to
purchase an “AK or SKS” assault rifle directly related to the other
evidence of his motives and preparation for the murders, we
conclude, contrary to Brookins’s argument, that the testimony at
issue here was not irrelevant. See Payne v. State, 273 Ga. 317, 318
(3) (540 SE2d 191) (2001) (“The trial court correctly denied this
28
motion [for a mistrial] because the evidence was admissible as part
of the res gestae of the murder, and was also relevant to the
existence of a motive for that crime.”); cf. Nichols v. State, 282 Ga.
401, 403 (2) (651 SE2d 15) (2007) (holding that it was error to admit
similar evidence where the evidence was “irrelevant” to the
defendant’s alleged crimes).
4. The trial court did not err by trying the issue of Brookins’s
alleged intellectual disability during the guilt/innocence phase. See
King, 273 Ga. at 272 (27) (citing Palmer v. State, 271 Ga. 234, 237
(3) (517 SE2d 502) (1999)). See also Livingston v. State, 264 Ga. 402,
406 (3) (444 SE2d 748) (1994) (“While there may be advantages to a
criminal defendant in having a trial apart from the guilt-innocence
phase on the issue of mental retardation, such a change must come
from the General Assembly.”).
5. Brookins argues that, in the guilt/innocence phase, the State
made improper comments in its opening statement and asked
improper questions to witnesses concerning his mental condition.
Specifically, he argues that the State’s opening statement, questions
29
to witnesses, and closing argument impermissibly conflated the
issue of “mental illness,” which was part of a verdict that he was
seeking, with the issue of “insanity,” which he was not alleging. For
example, the State mentioned in its opening statement that the
mental health evidence would not prove “that [Brookins] did not
know right from wrong” or was “acting under any delusion or
compulsion that over-masked [sic] his will.”
The terms “mentally ill” and “insane” as defined in Georgia law
overlap significantly in meaning. The Code provides the following
definition for “mentally ill”:
“Mentally ill” means having a disorder of thought or mood
which significantly impairs judgment, behavior, capacity
to recognize reality, or ability to cope with the ordinary
demands of life. However, the term “mental illness” shall
not include a mental state manifested only by repeated
unlawful or antisocial conduct.
OCGA § 17-7-131 (a) (3) (as renumbered by Ga. L. 2017, p. 471, § 3)
(emphasis supplied). As to “insanity,” the Code provides two
definitions that will support a verdict of “not guilty by reason of
insanity.” In the first, the definition is met where “the person did
30
not have mental capacity to distinguish between right and wrong in
relation to [an otherwise-criminal act].” OCGA § 16-3-2 (emphasis
supplied). In the second, the definition is met where “the person,
because of mental disease, injury, or congenital deficiency, acted as
he did because of a delusional compulsion as to such act which
overmastered his will to resist committing the crime.” OCGA § 16-
3-3 (emphasis supplied). Much of the controversy in Brookins’s case
should be understood in relation to this overlap of meanings.
Clearly, every person who fits one of the two legal definitions of
“insanity” would also qualify as “mentally ill” under the law. But
the reverse is not true, as not every person who is “mentally ill” can
meet one of the two narrower definitions of “insanity.” See Boswell
v. State, 275 Ga. 689, 690 (1) (572 SE2d 565) (2002) (“A defendant
who is not insane may nonetheless be found guilty but mentally
ill. . . .”). Thus, we have held that the distinction between these two
definitions must be made clear in the charges to the jury when both
are at issue in the case. See Keener v. State, 254 Ga. 699, 702-703
(2) (334 SE2d 175) (1985). Likewise, we hold here that parties’
31
statements and questions that suggest that a defendant must fit the
definition of “insanity” in order to be found “mentally ill” are
objectionable.
In Brookins’s case, some of the State’s statements and
questions complained about on appeal were plainly not
objectionable, as issues such as whether Brookins had “a self-control
problem” or “d[id]n’t understand the reality the rest of us live in”
were directly relevant to whether he had “a disorder of thought or
mood which significantly impairs judgment, behavior, capacity to
recognize reality, or ability to cope with the ordinary demands of life.”
OCGA § 17-7-131 (a) (3) (as renumbered by Ga. L. 2017, p. 471, § 3)
(emphasis supplied). See Jenkins v. State, 269 Ga. 282, 292 (16) (498
SE2d 502) (1998) (holding that “the prosecutor’s use of the term
‘competence’ and references to [the defendant’s] ability to
distinguish right and wrong . . . were not designed to confuse the
jury but were part of the prosecutor’s overall argument that [the
defendant’s] conduct evidenced a mental capability inconsistent
with mental retardation”). However, we conclude that some
32
statements and questions by the State, such as those incorporating
the phrases “criminal responsibility” and “overmastering of the
will,” would have been somewhat confusing to the jurors as to what
it would eventually be called upon to decide under the proper
definition of “mental illness” that the trial court eventually provided
to them.
As to the one instance of such improper questioning about
which Brookins has shown that he objected at trial, which involved
the phrases “criminal responsibility” and “overmaster[ing] his
ability to control himself,” we hold that the improper questioning
does not require a new trial, as it is highly probable that it did not
contribute to the guilt/innocence or sentencing phase verdicts. See
Johnson v. State, 238 Ga. 59, 61 (230 SE2 869) (1976) (adopting the
“highly probable” test of harmlessness for non-constitutional
errors). 7 As to the remaining instances where no objection was
7 Regarding the “highly probable” test for the harmlessness of non-
constitutional error, we note that a number of decisions have equated that
standard with the “reasonable probability of a different outcome” standard.
However, we note that those decisions, when traced to their origin in a single
33
opinion by the Court of Appeals in Berry v. State, 210 Ga. App. 789, 791 (3)
(437 SE2d 630) (1993), adopted language from the field of ineffective assistance
of counsel without a discussion in any of them of why doing so was warranted
or advisable. See Nichols, 282 Ga. at 405 (2) (citing Belmar v. State, 279 Ga.
795, 800 (3) (621 SE2d 441) (2005)); Morris v. State, 280 Ga. 179, 180 (3) (a)
(626 SE2d 123) (2006) (citing Felder v. State, 270 Ga. 641, 646 (8) (514 SE2d
416) (1999)); Belmar, 279 Ga. at 800 (3) (citing Felder, 266 Ga. at 576); London
v. State, 274 Ga. 91, 94 (4) (c) (549 SE2d 394) (2001) (citing Felder, 266 Ga. at
576); Felder, 266 Ga. at 576 (2) (citing Berry, 210 Ga. App. at 791 (3)); Hahn v.
State, 356 Ga. App. 79, 81 (1) (846 SE2d 258) (2020) (citing King v. State, 346
Ga. App. 362, 369-370 (1) (816 SE2d 390) (2018)); Maqrouf v. State, 349 Ga.
App. 174, 180 & n.19 (1) (b) (825 SE2d 569) (2019) (citing Sanchez-Villa v.
State, 341 Ga. App. 264, 273 (1) (b) (799 SE2d 364) (2017)), overruled on other
grounds by Flowers v. State, 307 Ga. 618, 621 n.3 (837 SE2d 824) (2020);
Sanchez-Villa, 341 Ga. App. at 273 (1) (b) (citing Lowther v. State, 263 Ga. App.
282, 283 (1) (587 SE2d 335) (2003)); King, 346 Ga. App. at 369-370 & n.18
(citing Gaskin v. State, 334 Ga. App. 758, 763 (1) (b) (780 SE2d 426) (2015));
Douglas v. State, 340 Ga. App. 168, 174 & n.20 (2) (796 SE2d 893) (2017) (citing
Gaskin, 334 Ga. App. at 761 (1) (a)); Grier v. State, 339 Ga. App. 778, 787 (5)
(792 SE2d 737) (2016) (citing Lowther, 263 Ga. App. at 283 (1)); Gaskin, 334
Ga. App. at 763-764 (1) (b) (citing Leverette v. State, 303 Ga. App. 849, 852 (2)
(696 SE2d 62) (2010)); Goolsby v. State, 311 Ga. App. 650, 656 (3) (718 SE2d 9)
(2011) (citing Dixon State, 303 Ga. App. 517, 520 (2) (693 SE2d 900) (2010));
Hughes v. State, 309 Ga. App. 150, 154 (2) (709 SE2d 900) (2011) (citing
Leverette, 303 Ga. App. at 851 (2)); Robinson v. State, 308 Ga. App. 562, 568 &
n.20 (1) (708 SE2d 303) (2011) (citing Gresham v. State, 281 Ga. App. 116, 119
(635 SE2d 316) (2006)); Williams v. State, 307 Ga. App. 675, 679 & n.10 (2)
(705 SE2d 906) (2011) (citing Shirley v. State, 259 Ga. App. 503, 505 (578 SE2d
163) (2003)); Leverette, 303 Ga. App. at 852 & n.15 (2) (citing Abernathy v.
State, 299 Ga. App. 897, 902 (2) (685 SE2d 734) (2009)); Dixon, 303 Ga. App.
at 520-521 & n.17 (2) (citing Shirley, 259 Ga. App. at 505); Abernathy, 299 Ga.
App. at 902 & n.19 (2) (citing Shirley, 259 Ga. App. at 505); Adams v. State,
284 Ga. App. 534, 541 & n.42 (3) (644 SE2d 426) (2007) (citing Felder, 266 Ga.
at 576 (2)); Gresham, 281 Ga. App. at 119 & n.15 (citing Felder, 266 Ga. at 576
(2)); Phillips v. State, 278 Ga. App. 439, 441 & n.4 (1) (629 SE2d 130) (2006)
(citing London, 274 Ga. at 94-95 (4) (c) and Felder, 266 Ga. at 576 (2)); Lowther,
263 Ga. App. at 283 (1) (citing Berry, 210 Ga. App. at 791 (3)); Shirley, 259 Ga.
App. at 505 & n.2 (citing Key v. State, 226 Ga. App. 240, 242 (1) (485 SE2d 804)
(1997)); Hayward v. State, 258 Ga. App. 566, 568 & n.6 (1) (b) (574 SE2d 646)
34
raised, we hold that Brookins’s claims are waived for the purposes
of ordinary appellate review. See Martin, 298 Ga. at 278-279 (6) (d).
Nevertheless, we consider Brookins’s arguments in our Sentence
Review below. See id. at 279 (6) (d) (“That plenary review guards
against any obvious impropriety at trial, whether objected to or not,
that in reasonable probability led to the jury’s decision to impose a
death sentence.”).
(2002) (citing Felder, 266 Ga. at 576 (2)); Clark v. State, 248 Ga. App. 88, 90-
91 (2) (545 SE2d 637) (2001) (citing Felder, 266 Ga. at 576 (2)); Key, 226 Ga.
App. at 242 (1) (citing Felder, 266 Ga. at 576); Berry, 210 Ga. App. at 791 (3)
(citing Hite v. State, 208 Ga. App. 267, 270 (2) (430 SE2d 125) (1993)), overruled
on other grounds by State v. Burns, 306 Ga. 117, 124 (2) (829 SE2d 367) (2019);
Hite, 208 Ga. App. at 269-270 (1)-(2) (430 SE2d 125) (1993) (assuming an error
to be of constitutional magnitude, concluding that the error was harmless
beyond a reasonable doubt, and then deciding a related ineffective assistance of
counsel claim under the reasonable probability of a different outcome
standard). However, more recently this Court has treated the two tests as
being distinct, particularly when any difference between them might matter.
See Harris v. State, 313 Ga. 872, 882 (4) (874 SE2d 73) (2022) (addressing the
two standards side-by-side); State v. Lane, 308 Ga. 10, 21-22 (4) (838 SE2d 808)
(2020) (noting the two different standards but noting that “in most cases a
difference in the standards will not make a difference in the result”); Boatright
v. State, 289 Ga. 597, 601-602 (7) (713 SE2d 829) (2011) (addressing the two
standards side-by-side); Felton v. State, 283 Ga. 242, 246-247 (2) (d) (657 SE2d
850) (2008) (addressing the two standards side-by-side). See also Hilliard v.
State, 226 Ga. App. 478, 482 (1) (487 SE2d 81) (1997) (describing the two
standards as “similar”). Nevertheless, we need not resolve here the question of
whether the two standards are equivalent, because we conclude that the error
at issue in Brookins’s case would be harmless under either standard.
35
6. Brookins argues that it was error for the trial court to permit
the State to present evidence against a possible finding of
intellectual disability or mental illness in its case-in-chief in the
guilt/innocence phase rather than only in rebuttal to evidence first
presented by him in favor of such a finding. However, relying on
Uniform Superior Court Rule 10.2, this Court has held that the
State is entitled to present its case for such verdicts first. See
Stripling v. State, 289 Ga. 370, 375 (2) (711 SE2d 665) (2011)
(holding regarding evidence against a possible finding of intellectual
disability that “the rule clearly contemplates that the State will be
entitled to present its evidence before [the defendant] presents his
[or her] evidence”), disapproved on other grounds by Young v. State,
312 Ga. 71, 91 (25) (c) (i) (860 SE2d 746) (2021) (plurality opinion).
Brookins argues that a different rule should apply because the State
is entitled to present expert mental health testimony only if the
defense first presents its own. First, this argument is overly broad,
as it seems to encompass all expert mental health testimony,
whereas the general rule about the State’s use of expert mental
36
health testimony only in rebuttal to the defense’s own use of such
testimony is premised on whether the State’s expert has evaluated
the defendant in a manner that implicates his or her constitutional
right to remain silent. See Nance v. State, 272 Ga. 217, 219-220 (2)
(526 SE2d 560) (2000) (“[T]he purpose of the rule requiring the
defendant to submit to a State mental health examination under
these circumstances is to permit the State to formulate a response
or a rebuttal to the testimony of the defendant’s mental health
expert. . . .”); Abernathy v. State, 265 Ga. 754, 754-755 (2) (462 SE2d
615) (1995). Second, to the extent that Brookins’s argument applies
to expert mental health testimony that does implicate the
constitutional right to silence, we hold that that right is sufficiently
protected when, upon request by the defendant, such testimony from
the State is not presented until “an announcement by the defendant
that he [or she] intends to present expert mental health testimony”
of his or her own at trial. State v. Johnson, 276 Ga. 78, 80-81 (3)
(576 SE2d 831) (2003) (addressing whether and for how long to seal
the evaluation of the State’s mental health expert). Thus,
37
pretermitting Brookins’s failure to raise a related objection at trial,
we conclude that there is no error here.
7. Brookins argues that the State and its expert witnesses
repeatedly mischaracterized the definition of intellectual disability,
the abilities of some intellectually disabled persons, and the import
of a person’s having some behavioral strengths while still having
some weaknesses. We conclude that no objections by Brookins were
erroneously overruled on these points, because the testimony,
arguments to the jury, and charges to the jury that Brookins
discusses on appeal, as ultimately expressed and in context, were
compatible with the Georgia Code, this Court’s precedents, and the
precedents of the United States Supreme Court. See OCGA § 17-7-
131 (a) (3) (defining “mental retardation” prior to an amendment in
2017 that adopted the term “intellectual disability” and renumbered
paragraphs); OCGA § 17-7-131 (a) (2) (defining “intellectual
disability” since the amendment in 2017 by Ga. L. 2017, p 471, § 3);
Moore v. Texas, 581 U. S. 1, ___ (I) (137 SCt 1039, 197 LE2d 416)
(2017) (describing the “generally accepted, uncontroversial
38
intellectual-disability diagnostic definition” and noting that the
definition “identifies three core elements: (1) intellectual-
functioning deficits (indicated by an IQ score approximately two
standard deviations below the mean – i.e., a score of roughly 70 –
adjusted for the standard error of measurement); (2) adaptive
deficits (the inability to learn basic skills and adjust behavior to
changing circumstances); and (3) the onset of these deficits while
still a minor.” (citations and punctuation omitted)); Stripling v.
State, 261 Ga. 1, 4 (3) (b) (401 SE2d 500) (1991). See also Young,
312 Ga. at 91 (25) (c) (i) (plurality opinion) (“On this point, we
emphasize that Georgia, by statute and through case law, has
always applied such prevailing clinical standards.”).
8. Brookins argues that the trial court erred by qualifying his
former school psychologist as an expert witness for the State. The
school psychologist explained during his voir dire that he held a
master’s degree in educational psychology, had completed
everything but the dissertation for a PhD, had worked as a child
psychologist for 30 years, had evaluated about 10,000 students, did
39
not hold a license as a psychologist but did hold a certificate from
the State Department of Education in school psychology, did not
need any further credentials to serve as a school psychologist, and
was qualified to conduct evaluations for potential intellectual
disability and for students with “academic, learning, behavioral,
[and] emotional” difficulties. The trial court did not abuse its
discretion in finding him qualified as an expert witness. See former
OCGA § 24-9-67 (now repealed by 2022 Ga. L., p. 743, § 2) (“In
criminal cases, the opinions of experts on any question of science,
skill, trade, or like questions shall always be admissible. . . .”);
Adams v. State, 275 Ga. 867, 868 (3) (572 SE2d 545) (2002) (“The
trial court excluded this [expert] testimony because whether Adams
had a mental disorder was a medical opinion, only doctors can give
medical opinions, and [the proposed expert] was not a doctor. This
ruling was error. . . . The fact that she did not hold a medical degree
goes only to the weight the jury may give her testimony.”).
9. Brookins argues that Dr. Katherine Jacoby, a psychiatrist
who testified for the State, was improperly permitted to “guess” at
40
what Brookins’s IQ was. The psychiatrist was qualified as an expert
witness without any objection by Brookins, as was Dr. Scott Smith,
a psychologist who also testified for the State and who had worked
with Dr. Jacoby as a team in conducting an evaluation of Brookins.
Indeed, the record shows that both witnesses were amply qualified
to give expert testimony about Brookins’s alleged intellectual
disability and mental illness. Dr. Jacoby explained that she and Dr.
Scott examined Brookins’s medical records, spoke to Brookins’s
family, spoke with Brookins for over 14 hours, performed
psychological tests, reviewed legal documents regarding the
murders and past domestic violence, read witness forms regarding
the murders, reviewed video recordings of Brookins from after the
murders, examined prior psychological evaluations for disability
benefits, examined jail records, and reviewed the results from an
EEG and an MRI. Although, as shown by his later testimony, Dr.
Smith had administered a test for malingering of memory skills that
had provided no “specific signs” of malingering as to cognitive
impairment, Dr. Smith added that he could not “say definitively that
41
[Brookins] did his best and was not malingering” on his IQ test.
Furthermore, Dr. Jacoby’s diagnoses included findings that
Brookins had been “malingering” or “making up” symptoms of
psychosis and dissociation, and she explained that, “[i]f someone is
malingering one issue, you have to look very carefully at all the other
issues that they’re complaining of and . . . see if they’re malingering
those as well.”
When Dr. Jacoby explained that testing by Dr. Scott had
yielded an IQ score of 72, the State asked her whether she was
“surprised at that number based on what [she] had seen from”
Brookins, and she answered, “Yes, I was.” The State followed up by
asking, “What did you expect, based on your history with him?” She
answered, “I expected probably mid-80s.” Then she answered
affirmatively when the State asked whether, “after 14 hours of
talking with him, [she had] expected him to be somewhere in the
mid-80s.” Brookins objected, arguing that such testimony would be
“speculation,” that “Dr. Smith [rather than Dr. Jacoby] did the IQ
evaluation,” and that Dr. Jacoby was “not even qualified to give IQ
42
evaluations.” Pretermitting the arguable question of whether the
testimony was “speculative” or, as Brookins argues the point on
appeal, mere “guessing,” and pretermitting also Brookins’s
argument on appeal that Dr. Jacoby’s testimony did not satisfy the
requirements for expert testimony that applied in criminal
proceedings at the time of his trial, we hold that any error in
admitting the testimony was harmless in that “it is highly probable
that the error did not contribute to the verdict.” Sanders v. State,
251 Ga. 70, 76 (3) (303 SE2d 13) (1983) (addressing expert
testimony). We reach this conclusion in light of the fact that Dr.
Jacoby was willing to assume the validity of Brookins’s tested IQ
score of 72 while nevertheless remaining confident that he was not
intellectually disabled and further, along with our consideration of
the overall strength of the State’s evidence and the weakness of
Brookins’s evidence as outlined in some detail in Division (1) (b). See
Felder v. State, 270 Ga. 641, 645 (7) (514 SE2d 416) (1999) (noting
that contested testimony was “based upon [the witness’s] own
personal observations and training”); Burgess v. Commr., 723 F3d
43
1308, 1316 (II) (A) (11th Cir. 2013) (rejecting as unreasonable a
state-court finding of no intellectual disability where the finding was
based on an “estimate” of the defendant’s IQ, where “there was no
evidence introduced as to how this estimate was obtained” and where
the expert who had reportedly reached the estimate also expressed
the view that the defendant “may even be mildly mentally
retarded”). See also Hamilton v. State, 309 Ga. 1, 7-8 (3) (843 SE2d
840) (2020) (applying Harper v. State, 249 Ga. 519 (292 SE2d 519)
(1982), which governed expert testimony in criminal cases prior to
July 1, 2022); OCGA § 24-7-702 (as amended by Ga. L. 2022, p. 743,
§ 1, to apply “in all proceedings” rather than only “in all civil
proceedings”).
10. Brookins argues that, in a number of instances, lay
witnesses were improperly asked to opine as to whether Brookins
was intellectually disabled and to rely on lay stereotypes about
intellectual disability. This claim has not been preserved for the
purposes of ordinary appellate review, because no objection was
raised to the State’s contested questions to these witnesses, at least
44
not after the State was permitted to reformulate its questions after
some initial objections. See Martin, 298 Ga. at 278-279 (6) (d).
Nevertheless, we consider Brookins’s argument in our Sentence
Review below. See id. at 279 (6) (d) (“That plenary review guards
against any obvious impropriety at trial, whether objected to or not,
that in reasonable probability led to the jury’s decision to impose a
death sentence.”). See also Rogers v. State, 282 Ga. 659, 667-668
(10) (653 SE2d 31) (2007) (holding that lay testimony regarding a
defendant’s “behavior . . . was relevant to the issue of [the
defendant’s] adaptive skills . . . and was not unduly prejudicial
because the [lay witness] clarified that he was not diagnosing
anyone”), overruled on other grounds by State v. Lane, 308 Ga. 10,
23 (Appendix) (838 SE2d 808) (2020).
11. As noted above in our review of the evidence presented in
the guilt/innocence phase, a neuropsychiatrist testified on direct
examination by the defense that Brookins’s MRI from Central State
Hospital showed damage to brain tissue in the frontal lobe, the State
presented testimony from the radiologist at Central State Hospital
45
who had originally interpreted the MRI insisting that there was no
evidence of brain damage shown by it, and the defense then recalled
its neuropsychiatrist to respond. The defense neuropsychiatrist, Dr.
Thomas Sachy, stated that he was “stunned and shocked” by the
testimony of the State’s radiologist, which he described as
“ludicrous.” Dr. Sachy further stated, “I’m upset when someone –
and I’ve seen this before, especially for prosecution witnesses, to say
that things that are plainly evident – that the evidence that is
evident is not so.” Dr. Sachy also decried how he had been
“discouraged” from obtaining MRIs for patients when he previously
worked for the State.
The State then asked Dr. Sachy about his current medical
practice, including whether he currently “prescribe[d] medication
such as benzodiazepines,” and continued by questioning Dr. Sachy
about an investigation regarding his alleged practice of “backdating
and hoarding prescriptions allegedly taken from [his] patients at
[his] house.” Dr. Sachy responded by stating that he was involved
in an acrimonious divorce; that the allegations against him were by
46
his wife; that evidence had arisen about his wife being involved in
forgery of court documents related to his daughter’s last name; that
he believed that his claim of forgery against his wife had been
“covered up” by “the District Attorney of this Circuit”; that he had a
recording of an investigator making a statement regarding his wife,
who was a medical examiner for the State, that the prosecutors “do
not go after people of her stature for things like this.” Dr. Sachy also
claimed that his wife was involved in “coverups made in the
autopsies of people who may have been killed by law enforcement
officers” and stated that he was upset about “the veracity and
integrity of the GBI” and about how the sheriff’s offices in Jones and
Bibb counties had refused to pursue the matter.
After the State confirmed with Dr. Sachy that he had been
cleared of the accusations regarding his prescribing practices, the
State began asking him about the allegation that he had threatened
his father-in-law verbally and with his foot or fist. Brookins objected
at this point, arguing that the line of questioning was not relevant
to Dr. Sachy’s expert testimony and was “not proper impeachment.”
47
The State responded that it was seeking to show that Dr. Sachy had
“a bias and a leaning which [wa]s clearly pro-defense, anti-state,”
and it later added a comment about a “greater cogency” of such
testimony in “a case of domestic violence.” The trial court, without
explaining its ruling in detail, ruled that the line of questioning was
“proper,” and Dr. Sachy’s cross-examination about his contentious
divorce continued for quite some time, with the State recounting his
wife’s allegations and with him responding with his own accusations
against his wife and her parents. Then, Brookins objected again,
this time arguing that the State had already covered the issue of
possible bias; however, the trial court denied this second objection.
In response to some of the continued questioning, Dr. Sachy stated,
“This District Attorney’s Office hasn’t investigated the other side,
but I have.” This continued questioning even included a reference
to an allegation of child molestation against Dr. Sachy by his wife,
which the State noted had not resulted in any charges. The State
then asked Dr. Sachy directly whether he could “be completely
unbiased on a case where a man is accused of domestic violence.”
48
Although this is a close question, we hold that the trial court
did not abuse its discretion in denying Brookins’s objections to the
State’s cross-examination of Dr. Sachy about his having been
investigated based on allegations made by his wife during their
divorce, about the alleged unwillingness of investigators or the
District Attorney to follow up on allegations regarding his wife’s
falsely testifying in unrelated criminal cases, about law enforcement
officers’ and the District Attorney’s alleged unwillingness to pursue
accusations that Dr. Sachy had himself made against his wife, and
about Dr. Sachy’s anger about these intertwined situations and any
bias against the State resulting from them, because we conclude
that the cross-examination was sufficiently relevant to the issue of
Dr. Sachy’s admitted bias against the State. See Lee v. State, 306
Ga. 663, 668-669 (4) (832 SE2d 851) (2019) (concluding that the trial
court did not abuse its discretion in allowing cross-examination by
the State about pending criminal charges against a witness who
might have “reason to try to wound the State by shading his
testimony”); Watkins v. State, 276 Ga. 578, 580-581 (3) (581 SE2d
4923) (2003) (holding that “a witness cannot be impeached by instances
of specific misconduct unless that misconduct has resulted in the
conviction of a crime involving moral turpitude” but further holding
that a witness may still be examined as to any potential bias,
including any stemming from the pending charges); Hines v. State,
249 Ga. 257, 260 (2) (290 SE2d 911) (1982) (“The introduction of
evidence of a prior crime is thus a general attack on the credibility
of the witness. A more particular attack on the witness’ credibility
is effected by means of cross-examination directed toward revealing
possible biases, prejudices, or ulterior motives of the witness as they
may relate directly to the issues or personalities in the case at
hand.”). Cf. Merritt v. State, 311 Ga. 875, 880-881 (3) (a) (i) (860
SE2d 455) (2021) (noting that the relevant law was the same before
and after the enactment of Georgia’s current Evidence Code and
holding: “Accordingly, the minimal probative value of the evidence
was substantially outweighed by its unfair prejudicial effect;
therefore, the trial court abused its discretion in allowing this
testimony.”).
50
12. Brookins claims that the State possessed investigative
reports from multiple state entities that would have shown that Dr.
Sachy’s wife’s accusations against him were false, and he claims that
the State failed to disclose those reports until years after Dr. Sachy’s
cross-examination. We reject each of Brookins’s three arguments for
why the State’s actions might require a new trial.
(a) Brookins first argues that the State’s failure to give the
reports to him prior to Dr. Sachy’s cross-examination violated his
right to due process because those reports demonstrate that the
prosecutor lacked a “good faith basis” for asking its cross-
examination questions. See Berger v. United States, 295 U. S. 78,
88 (55 SCt 629, 79 LE2d 1314) (1935) (“He may prosecute with
earnestness and vigor – indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul ones.”). However,
we conclude that, regardless of whether the accusations were
accurate when they were originally made, the State had a good faith
basis at trial for believing that the existence of the accusations
themselves showed why Dr. Sachy harbored a bias against the State
51
resulting from official investigations of him in connection with
prescriptions that he had written and from circumstances
surrounding his divorce. Furthermore, the allegedly-suppressed
records presented by Brookins do not show that the accusations
against Dr. Sachy were untrue but instead show only that the
investigations into them resulted in conclusions that the accusations
were not compelling enough under the circumstances to be pursued
by law enforcement or the medical board.
(b) Brookins next argues that the State’s actions amounted to
unconstitutional evidence suppression. See Brady v. Maryland, 373
U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). To succeed on this Brady
claim, Brookins must satisfy four factors: (1) the State, including
any part of the prosecution team, possessed evidence favorable to
Brookins; (2) Brookins did not actually possess the favorable
evidence and could not have obtained it himself with any reasonable
diligence; (3) the State suppressed the favorable evidence; and (4) a
reasonable probability that the outcome of Brookins’s trial would
have been different if the evidence had been disclosed to him. See
52
Schofield v. Palmer, 279 Ga. 848, 852 (2) (621 SE2d 726) (2005).8
Upon our review of the record, we conclude that the trial court’s
findings of fact regarding this claim, which was also raised in
Brookins’s motion for a new trial, were not clearly erroneous. The
trial court found that the prosecutor “advised [Brookins’s counsel] of
the contents of the reports” and even warned Brookins’s counsel
that, “if Dr. Sachy were called for additional testimony, that
information would be used as potential impeachment evidence or
evidence of Dr. Sachy’s bias.” Furthermore, in response to the claim
by Brookins’s counsel in an affidavit that he was not made aware of
the allegations against Dr. Sachy contained in the allegedly-
suppressed reports, the trial court found that, “while the
documentation was not made available prior to the cross
examination, the substance of those allegations w[as] provided to
8 We decline Brookins’s invitation to revisit our prior reasoning in
applying this four-part test as a means of applying the original three-part test
of Brady; that prior reasoning, if traced to its origin through our case law and
then through that of the United States Court of Appeals for the Eleventh
Circuit, was borrowed from various federal courts of appeals. See Zant v.
Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994) (citing United States v. Meros,
866 F2d 1304, 1308 (II) (A) (1) (11th Cir. 1989)).
53
counsel.” Finally, the trial court noted that “[n]othing prevented
[Brookins] from asking Dr. Sachy about the potential impeachment
or bias evidence,” and Dr. Sachy was, we add, Brookins’s own expert.
Also, we further note that the prosecutor informed Brookins’s
counsel that he had just learned about the contents of the reports
but did not yet have the actual reports, and yet Brookins took no
actions to obtain a copy of them prior to calling Dr. Sachy back to
the witness stand. Under all of these circumstances, we conclude
that Brookins has failed to satisfy the second of the four factors set
forth above, which requires him to show that he did not actually
possess the favorable evidence at issue and could not have obtained
it himself with reasonable diligence. See id. Accordingly, Brookins’s
Brady claim fails.
(c) Finally, Brookins argues that the State violated its duty to
disclose the reports at issue to him as part of discovery under OCGA
§ 17-16-4 (a) (3) (A) (creating a duty to disclose “documents . . .
intended for use by the prosecuting attorney as evidence in the
prosecution’s case-in-chief or rebuttal”). Because Brookins failed to
54
make such an objection at trial, this claim is waived for the purposes
of ordinary appellate review. See Martin, 298 Ga. at 278-279 (6) (d);
Danenberg v. State, 291 Ga. 439, 442 (4) (729 SE2d 315) (2012)
(addressing waiver of this particular issue). Nevertheless, we have
considered Brookins’s arguments throughout this enumeration of
error concerning the allegedly suppressed reports in our Sentence
Review below. See Martin, 298 Ga. at 279 (6) (d) (“That plenary
review guards against any obvious impropriety at trial, whether
objected to or not, that in reasonable probability led to the jury’s
decision to impose a death sentence.”).
13. In accordance with OCGA § 17-7-131 (b) (3) (C) (as
currently renumbered by Ga. L. 2017, p. 471, § 3), the trial court
charged the jury that a verdict of “guilty but mentally retarded”
would result in his being “placed in the custody of the Department
of Corrections” with the Department’s having “discretion” to make a
“referral for temporary hospitalization at a facility operated by the
Department of Human Resources.” Pretermitting Brookins’s failure
to object, we note that this Court has previously denied relief under
55
a claim similar to the one that Brookins makes here, in which he
contends that the jury would have been misled into believing that
Brookins would not receive a life sentence upon a verdict of guilty
but intellectually disabled. See Young, 312 Ga. at 114 (34) (plurality
opinion).
14. As in the pattern jury charges, the trial court’s instructions
included a statement that the jury “would be authorized” to enter a
verdict of “guilty but mentally retarded” upon the requisite findings
for such a verdict. See Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases, § 3.80.50. Because Brookins raised no objection to
this instruction, which he had a significant role in preparing, it is
subject to review only for whether there was plain error that affected
substantial rights and then to further review as part of our Sentence
Review below. See OCGA § 17-8-58 (b); Martin, 298 Ga. at 278-279
(6) (d). To show plain error, Brookins must show that (1) there was
no affirmative waiver, (2) the error was obvious, (3) the instruction
likely affected the outcome of the proceedings, and (4) the error
seriously affected the fairness, integrity, or public reputation of the
56
judicial proceedings. See Beasley v. State, 305 Ga. 231, 236 (3) (824
SE2d 311) (2019). Pretermitting whether any error here was
affirmatively waived or should have been obvious, we hold that any
such error neither likely affected the outcome of his trial nor
seriously affected the fairness, integrity, or public reputation of
Brookins’s trial. See Young, 312 Ga. at 116 (37) (plurality opinion)
(rejecting a similar claim). See also Woodard v. State, 296 Ga. 803,
809 (3) (a) (771 SE2d 362) (2015) (“We note that whether a
defendant’s request that the trial court give a jury instruction is
properly held to affirmatively waive all alleged errors regarding
language included in or omitted from the instruction, or only errors
regarding language that the record shows the defendant included or
omitted after considering the controlling law, is a question that has
divided the federal courts of appeals.”). We also consider this
argument in our Sentence Review below. See Martin, 298 Ga. at 279
(6) (d) (“That plenary review guards against any obvious impropriety
at trial, whether objected to or not, that in reasonable probability
led to the jury’s decision to impose a death sentence.”).
57
15. Pretermitting the fact that the claim was waived for the
purposes of ordinary appellate review, we see no merit to Brookins’s
argument that the verdict form was insufficient to ensure a
unanimous verdict as to the possible verdicts in the guilt/innocence
phase of his case but instead allowed the jury to settle on a simple
verdict of guilty as a compromise verdict. See Young, 312 Ga. at
115-116 (37) (plurality opinion) (“The charges, read as a whole, also
made clear that no verdict could be reached and entered on the
verdict form unless it was unanimous.”).
Issues Related to the Sentencing Phase
16. We reject Brookins’s argument that persons with “mental
illness” constitute a category of persons that, like intellectual
disability, must be subject to a categorical exemption from death
sentences. See Lewis v. State, 279 Ga. 756, 764 (12) (620 SE2d 778)
(2005).
17. There is no merit to Brookins’s contention that Georgia law
fails to sufficiently narrow the class of persons eligible for the death
penalty. See Ellington v. State, 292 Ga. 109, 116 (3) (a) (735 SE2d
58736) (2012), disapproved on other grounds by Willis, 304 Ga. at 706(11) (a) n.3.
18. Georgia’s death penalty statutes do not require that non-
statutory aggravating circumstances be proven beyond a reasonable
doubt, and they direct that this Court, rather than a jury, conduct
proportionality reviews of all death sentences, while failing to
prescribe a specific standard of proof for any alleged
disproportionality. We reaffirm that these procedures are not
unconstitutional. See Ellington, 292 Ga. at 116-117 (3) (d) (citing
Ring v. Arizona, 536 U. S. 584, 609 (II) (122 SCt 2428, 153 LE2d
556) (2002)), overruled on other grounds by Willis, 304 Ga. at 707(11) (a) n.3.
19. Brookins’s equal protection claim lacks merit because he
has not shown any invidious discrimination in his case. See
Ellington, 292 Ga. at 116 (3) (b), overruled on other grounds by
Willis, 304 Ga. at 707 (11) (a) n.3.
20. Brookins complains that a number of witnesses were
allowed to testify beyond what is allowed by the ordinary rules of
59
evidence and even beyond the relaxed rules of evidence applied in
the sentencing phase of a death penalty trial. While some of the
testimony at issue appears not to have been properly shown by the
State to be admissible, we note that the State might have been able
to show its admissibility if Brookins had raised relevant objections
at trial. Furthermore, we note that the core concerns raised in the
testimony would have been successfully put before the jury in any
case.
For example, one witness explained that she had been “best
friends” with Brookin’s ex-girlfriend and had personally witnessed
“a lot of fights,” including one where Brookins “physically started
beating her” and only stopped when the witness “laid on top of her
and dared him to hit [the witness].” She also testified that she was
“a witness to” Brookins’s telling the ex-girlfriend when she was
pregnant with his son “that he would kill her if she had an abortion.”
When asked if she knew of any other incidents that made her believe
that he might carry out his threat, she testified that she “didn’t
witness” but “kn[e]w, being her best friend,” that once “he took [his
60
ex-girlfriend] out in a field and beat her and stripped her butt
naked.” Brookins raised no objection to the witness’s lack of
firsthand knowledge of the attack itself, and this failure to object
was perhaps even intentional in light of the witness’s involvement
in searching for the ex-girlfriend and the risk that she might
elaborate on otherwise-unknown details about the ex-girlfriend’s
physical condition upon being found.
In another example, the county solicitor testified about her own
experience with the mother of Brookins’s son. While some of the
incidental aspects of the solicitor’s testimony might have been
inadmissible hearsay, the central portion involved a recounting of
her own personal experience following a threat from Brookins,
where his girlfriend was picked up and driven in a patrol car and
where the courthouse was essentially locked down until he could be
arrested.
Another witness, a probation officer, identified some of
Brookins’s certified court records and used them, along with his own
memories, to provide a history of Brookins’s many probation
61
violations. While some of the information provided by this witness
beyond the certified court records appears to be hearsay, much of it
was not, including the witness’s own observation of cut-up clothing
and a butcher knife when he responded to a call from Brookins’s
sister’s roommate about him.
Another witness, a jail guard, relied on jail records to recount
Brookins’s disciplinary violations while in jail, including some
unrevealed number of incidents that the witness had been
personally involved in.
Brookins’s argument also encompasses some clearly
admissible testimony about his involvement in fights in middle
school and high school, about his involvement in the theft of a
motorcycle at the age of 15, about his involvement in stealing a car
radio about 13 years prior to the trial, and his involvement, in an
unspecified year, in a fight where “[e]verybody ran off in the bushes”
when “everybody hollered cops.”
Most of Brookins’s arguments about the testimony at issue
here are unpersuasive, as “reliable evidence of bad character . . . is
62
admissible in the sentencing phase of a death penalty trial.”
(Citation omitted.) Braley v. State, 276 Ga. 47, 54 (34) (572 SE2d
583) (2002). We reject Brookins’s argument that evidence regarding
his youth was irrelevant, as the evidence tended to show the
longstanding nature of his defects of character and tended to
undercut his arguments that he had suffered a mental decline later
in life. Finally, we note that any concern with the underlying
reliability and admissibility of evidence is something that should be
raised at trial, which Brookins failed to do in these instances and
thereby waived any such arguments for the purposes of ordinary
appellate review. See Martin, 298 Ga. at 278-279 (6) (d).
Nevertheless, we have considered Brookins’s arguments in our
Sentence Review below. See id. at 279 (6) (d) (“That plenary review
guards against any obvious impropriety at trial, whether objected to
or not, that in reasonable probability led to the jury’s decision to
impose a death sentence.”).
21. Brookins contends that a number of arguments made by
the State at the conclusion of the sentencing phase warrant a new
63
trial. We disagree.
(a) In his argument, the prosecutor laid out a number of
categories of circumstances where a death sentence might not be
warranted and explained as to each why Brookins did not fit into
those categories; these categories were residual doubt, a troubled or
impoverished family background, sexual or physical abuse, alcohol
and drug problems, lack of a prior record, mental health problems,
a lack of help from “the system,” being a model inmate, and having
remorse. Although, in introducing these categories of
circumstances, the prosecutor described some of the facts that he
had encountered in other cases that illustrated them, these
descriptions were not so much “an invocation of prosecutorial
expertise” as they were “an explanation of the state’s reason” for
seeking the death penalty. Conklin v. State, 254 Ga. 558, 573 (11)
(331 SE2d 532) (1985) (declining to grant a new trial where “the
prosecutor argued that th[e] case was ‘one of the most vile and brutal
crimes to come about in th[e] county in recent memory’” (emphasis in
original)). While we have condemned “the injection into the
64
argument of extrinsic and prejudicial matters which have no basis
in the evidence,” the prosecutor here was doing the opposite of that:
he was pointing out to the jury what was not in evidence by drawing
contrasts with his descriptions of what the evidence might have
been. (Citation and punctuation omitted.) Conner v. State, 251 Ga.
113, 123 (6) (303 SE2d 266) (1983). See Scott v. State, 290 Ga. 883,
885 (2) (725 SE2d 305) (2012) (“A closing argument is to be judged
in the context in which it is made.”). Finally, we completely reject
Brookins’s suggestion that the prosecutor’s arguments “led [the
jurors] to believe that the responsibility for determining the
appropriateness” of a death sentence “rest[ed] elsewhere” other than
on them, as nothing in the prosecutor’s arguments suggested that
the final determination as to sentencing for the murders would be
made by anyone but the jurors. Caldwell v. Mississippi, 472 U. S.
320, 323, 328-329 (III) (A) (105 SCt 2633, 86 LE2d 231) (1985)
(vacating a death sentence where “the sentencing jury [wa]s led to
believe that responsibility for determining the appropriateness of a
death sentence rest[ed] not with the jury but with the appellate
65
court”).
(b) While the prosecutor should not have expressed his own
estimate of the cost of such treatment, the prosecutor was arguing
properly when he explained, based on the voluminous medical
records in the case, that Brookins had not been deprived of
appropriate services that might have helped him avoid becoming a
double murderer. Cf. Conner, 251 Ga. at 123 (6) (holding that
“counsel should not go outside the facts appearing in the case”
(citation and punctuation omitted)). As to the estimate of cost given
by the prosecutor, we conclude that it was not so harmful as to alter
our concluding analysis below in subdivision (e).
(c) The prosecutor did not argue improperly by highlighting
the evidence of Brookins’s prior bad behavior in jail and in prison in
support of his argument that Brookins would be a “lousy inmate.”
Cf. Henry v. State, 278 Ga. 617, 620 (1) (604 SE2d 826) (2004)
(holding that an argument that a life sentence for the defendant
“would be a death sentence for a future prison guard” was improper
where there was “no evidence” to support the argument other than
66
the sheer fact of the murder conviction in the case).
(d) After referring to Brookins’s “reading from the scriptures”
in his own testimony in the sentencing phase, the prosecutor quoted
from the Bible as follows: “[T]he law is not made for the righteous
man, but for the lawless and disobedient, for the ungodly [and for]
sinners, for the unholy [and] profane, for the murderers of fathers
and the murderers of mothers, for manslayers.” The prosecutor then
asked the jury to render a death sentence for Brookins, “who is
nothing but pure damn evil, who murdered the mother and who
murdered the child.” While we have held that attorneys may “allude
to such principles of divine law relating to [the] transactions of men
as may be appropriate to the case,” (Citation and punctuation
omitted.) Hill v. State, 263 Ga. 37, 45-46 (19) (427 SE2d 770) (1993),
we have also held that it is impermissible for a prosecutor to argue
that the Bible requires a death sentence for murder, because
“[l]anguage of command and obligation from a source other than
Georgia law should not be presented to a jury,” (Citations omitted.)
Carruthers v. State, 272 Ga. 306, 310 (2) (528 SE2d 217) (2000),
67
overruled on other grounds by Vergara v. State, 283 Ga. 175, 177 (1)
(657 SE2d 863) (2008). We conclude that the argument here would
not have been outside the discretion of the trial court to allow upon
an objection, and thus we also conclude that there is no reversible
error here where no objection was ever raised. See King, 273 Ga. at
275 (35) (“In light of this difficulty [in drawing precise lines about
religious references], some discretion must be afforded to trial courts
in determining whether a particular argument, whether made by
the State or by a defendant, tends to urge jurors’ compliance with
some religious mandate in potential exclusion of their duty to
consider all applicable sentencing alternatives.”).
(e) Finally, we note that none of the closing arguments
challenged here by Brookins were objected to at trial and that those
challenges have been waived for the purpose of ordinary appellate
review. See Martin, 298 Ga. at 278-279 (6) (d). However, we have
considered the above discussion in our Sentence Review below. See
id. at 279 (6) (d) (“That plenary review guards against any obvious
impropriety at trial, whether objected to or not, that in reasonable
68
probability led to the jury’s decision to impose a death sentence.”).
Sentence Review
22. Upon our review of the entire record, including those
portions relevant to the arguments noted above that were waived for
the purposes of ordinary appellate review, we conclude that the
sentence of death in this case was not imposed under the influence
of passion, prejudice, or any other arbitrary factor. See OCGA § 17-
10-35 (c) (1). See also Martin, 298 Ga. at 279 (6) (d) (stating
regarding this Court’s review under OCGA § 17-10-35 (c) (1): “That
plenary review guards against any obvious impropriety at trial,
whether objected to or not, that in reasonable probability led to the
jury’s decision to impose a death sentence.”).
23. In its sentencing verdict, the jury found as statutory
aggravating circumstances that the murder of Suzanne Brookins
was committed while Brookins was engaged in the capital felony of
the murder of Samantha Giles, that the murder of Samantha Giles
was committed while Brookins was engaged in the capital felony of
the murder of Suzanne Brookins, and that the murder of Samantha
69
Giles was outrageously or wantonly vile, horrible, or inhuman in
that it involved depravity of mind. See OCGA § 17-10-30 (b) (2), (7).
Upon our review of the record, we conclude that the evidence
presented at Brookins’s trial was sufficient to authorize a rational
trier of fact to find beyond a reasonable doubt the existence of these
statutory aggravating circumstances. See Ring, 536 U. S. 584,
passim; Jackson, 443 U. S. at 319 (III) (B); OCGA § 17-10-35 (c) (2)
(requiring a review of the statutory aggravating circumstances
found by the jury); UAP IV (B) (2) (providing that, in all death
penalty cases, this Court will determine whether the verdicts are
supported by the evidence). Even applying what this Court has
previously described as a “rule” against “mutually supporting
aggravating circumstances,” both death sentences in this case
remain supported by one statutory aggravating circumstance. See
Tate v. State, 287 Ga. 364, 368 (7) (695 SE2d 591) (2010) (citing Zant
v. Stephens, 462 U. S. 862 (103 SCt 2733, 77 LE2d 235) (1983)). We
also conclude that the evidence sufficiently supports the jury’s
finding of depravity of mind under constitutional standards. See
70
West v. State, 252 Ga. 156, 161-162 (Appendix) (313 SE2d 67) (1984)
(supplying a pattern jury charge to limit the application of the term
“depravity of mind” in OCGA § 17-10-30 (b) (7)).
24. The Georgia Code requires this Court, in the direct appeal
of a death sentence, to determine “[w]hether the sentence of death
is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.” OCGA § 17-
10-35 (c) (3). Upon our review of the evidence presented in both
phases of Brookins’s trial, including the evidence regarding his
alleged intellectual disability and mental illness, we conclude that
the death sentences imposed for the murders in this case are not
disproportionate punishments within the meaning of Georgia law.
See id.; Gissendaner v. State, 272 Ga. 704, 716-717 (19) (a) (532 SE2d
677) (2000) (holding that this Court’s statutorily mandated
proportionality review concerns whether a particular death sentence
“is excessive per se” or is “substantially out of line”). The cases cited
in the Appendix support this conclusion, as each shows a jury’s
willingness to impose a death sentence for the commission of a
71
murder involving the section (b) (7) statutory aggravating
circumstance or the deliberate, unprovoked killing of two or more
persons. See OCGA § 17-10-35 (e); Davis v. Turpin, 273 Ga. 244,
246 (2) (539 SE2d 129) (2000) (“Because it is a jury’s reaction to the
evidence before it that concerns this Court in its proportionality
review, it is irrelevant if the sentences in the cases used for
comparison were already at the time, or later are, reversed for
reasons unrelated to the juries’ reactions to the evidence.”).
Judgment affirmed. All the Justices concur.
APPENDIX
Young v. State, 312 Ga. 71 (860 SE2d 746) (2021); Willis v. State,
304 Ga. 686 (820 SE2d 640) (2018); Martin v. State, 298 Ga. 259 (779
SE2d 342) (2015), disapproved on other grounds by Willis v. State,
304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Hulett v. State,
296 Ga. 49 (766 SE2d 1) (2014); Rice v. State, 292 Ga. 191 (733 SE2d
755) (2012), overruled on other grounds by State v. Lane, 308 Ga. 10,
23 (Appendix) (838 SE2d 808) (2020), and disapproved on other
grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Tate v. State, 287 Ga.
364 (695 SE2d 591) (2010); Humphreys v. State, 287 Ga. 63 (694
SE2d 316) (2010), disapproved on other grounds by Willis, 304 Ga.
at 706 (11) (a) n.3; Stinski v. State, 286 Ga. 839 (691 SE2d 854)
(2010); Arrington v. State, 286 Ga. 335 (687 SE2d 438) (2009);
O’Kelley v. State, 284 Ga. 758 (670 SE2d 388) (2008); Lewis v. State,
277 Ga. 534 (592 SE2d 405) (2004) (relevant to Brookins’s case
despite the fact that the death sentence was later vacated for
72
reasons unrelated to the jury’s reaction to the evidence before it, see
Hall v. Lewis, 286 Ga. 767, 767-768, 781 (II) (692 SE2d 580) (2010));
Lance v. State, 275 Ga. 11 (560 SE2d 663) (2002), disapproved on
other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Lucas v. State,
274 Ga. 640 (555 SE2d 440) (2001); Rhode v. State, 274 Ga. 377 (552
SE2d 855) (2001); Morrow v. State, 272 Ga. 691 (532 SE2d 78)
(2000); Palmer v. State, 271 Ga. 234 (517 SE2d 502) (1999) (relevant
to Brookins’s case despite the fact that the death sentences were
later vacated for reasons unrelated to the jury’s reaction to the
evidence before it, see Schofield v. Palmer, 279 Ga. 848, 852-853 (3)
(621 SE2d 726) (2005)); McMichen v. State, 265 Ga. 598 (458 SE2d
833) (1995); Hightower v. State, 259 Ga. 770 (386 SE2d 509) (1989);
Ford v. State, 257 Ga. 461 (360 SE2d 258) (1987).
73