State v. Brinkman , 2022 Ohio 2550 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Brinkman, Slip Opinion No. 2022-Ohio-2550.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-2550THE STATE OF OHIO, APPELLEE, v. BRINKMAN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Brinkman, Slip Opinion No. 2022-Ohio-2550.]
Criminal law—Aggravated murder—Findings of guilt and death sentences
affirmed—Trial court’s judgment imposing postrelease control on counts
that were merged with other counts reversed, and cause remanded to the
trial court for it to vacate improperly imposed postrelease control.
(No. 2019-1642—Submitted November 10, 2021—Decided July 28, 2022.)
APPEAL from the Court of Common Pleas of Stark County, No. 2018CR1994.
__________________
DEWINE, J.
{¶ 1} This is a direct appeal in a capital case. George Brinkman murdered
Rogell (“Gene”) and Roberta (“Bobbi”) John in their home upon their return from
vacation. Brinkman waived his right to a jury trial and entered guilty pleas to the
charges against him. A three-judge panel found Brinkman guilty of two counts of
aggravated murder and sentenced him to death on each count. We affirm his
convictions and death sentences.
SUPREME COURT OF OHIO
{¶ 2} But we conclude that the trial court erred by imposing postrelease
control with respect to Brinkman’s convictions for aggravated robbery and
aggravated burglary, since those counts were merged with the aggravated-murder
convictions for purposes of sentencing. We therefore reverse the trial court’s
judgment imposing postrelease control as to the aggravated-burglary and
aggravated-robbery counts, and we remand Brinkman’s case to the trial court with
instructions for it to vacate the improperly imposed postrelease control.
I. BACKGROUND
A. The Johns’ bodies are discovered
{¶ 3} The John family had known Brinkman for some time. According to
Gene’s son, Jason, the family met Brinkman a decade earlier when Brinkman
started dating Jason’s half-sister. After that relationship ended, Brinkman
continued to work for a company co-owned by Jason and Gene and spent some
holidays with the John family.
{¶ 4} In June 2017, Brinkman house- and dog-sat for the Johns at their
home in North Canton while they were away on vacation. The Johns were
scheduled to return home on Sunday, June 11.
{¶ 5} The next day, Jason learned that Gene had not shown up for work.
Unable to reach Gene or Bobbi, Jason called Brinkman, who told him that the
couple had arrived home around 5:00 p.m. on Sunday. Brinkman told Jason that
Bobbi had not been feeling well and had gone to lie down but that he had stayed
and talked with Gene for a few hours before he left their house.
{¶ 6} After work, Jason went straight to the Johns’ home, where he
discovered their bodies in an upstairs bedroom. He called 9-1-1. Deputies from
the Stark County Sherriff’s Office reported to the scene. They found Gene’s body
on the bedroom floor, underneath a blood-soaked comforter with bullet holes in it.
A black wallet lay on the floor near Gene’s left hand. Bobbi’s body was on the
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bed, covered with a sheet. And there was a bloodstained pillow with bullet holes
in it on the floor next to the bed.
B. Brinkman is arrested and interviewed
{¶ 7} Jason gave the deputies Brinkman’s cell-phone number and address.
The deputies “pinged” Brinkman’s phone to pinpoint its GPS location and then
forwarded that information to the Brunswick and North Royalton police
departments. North Royalton police tracked Brinkman down and took him into
custody on June 13. That day, Stark County Deputy Sheriff Craig Kennedy
interviewed Brinkman at the North Royalton police department. Brinkman denied
having anything to do with the John murders.
{¶ 8} The next day, Deputy Sheriff Rick Stauffer and FBI Agent Andrew
Earl interviewed Brinkman. Brinkman said that he housesat for the Johns during
the past week while they were on vacation. He told the investigators that on the
day the Johns were expected to return from vacation, he noticed an M1911 handgun
in an open box on Gene’s desk. He saw rounds nearby and put them into the clip
and placed the clip into the gun. He then moved through the house, pointing and
pretending to shoot the gun as he went. When he saw the Johns arrive home, he
put the gun down and helped carry in their luggage.
{¶ 9} According to Brinkman, Bobbi “started yelling” at him soon after she
walked into the house, and she accused him of neglecting the dog. While Bobbi
and Brinkman were going at it, Gene spotted the gun and asked why it was out of
its box. Brinkman grabbed the gun and told the Johns to “shut up.” When the Johns
continued yelling at him, Brinkman ordered them upstairs to the guest bedroom at
gunpoint. (Brinkman said that he had picked that bedroom because it was farthest
from the neighbors, who had a young child.)
{¶ 10} Brinkman ordered the Johns to sit on the bed. But when he turned
to leave the room, he heard Gene get off the bed behind him. Brinkman turned
back around and, in his telling, the gun just “went off,” shooting Gene in the hip.
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Although he had admitted to loading the gun, Brinkman claimed that he had not
known that there was a round in the chamber.
{¶ 11} According to Brinkman, Bobbi started “freaking out” after he shot
Gene, so he pointed the gun at her and told her to shut up. Brinkman threw a
comforter to Gene to stop the bleeding and started hitting Bobbi on her head with
the butt of the gun because she would not be quiet. When Gene tried to stand up,
Brinkman shot him twice more. Brinkman then pushed Bobbi’s head down onto
the bed and continued to beat her with the butt of the gun. Bobbi kept screaming,
so Brinkman covered her head with a pillow and shot her. He put pillows under
Gene’s body so that Gene “would be comfortable.” But Bobbi was still making
gurgling sounds and trying to talk, so Brinkman held a pillow over her face for five
to ten minutes until she was quiet. He covered the two dead bodies with blankets.
{¶ 12} Brinkman took the four spent shell casings, the Johns’ cell phones,
and $140 in cash from their wallets. Before leaving the house, he showered and
changed clothes. He later disposed of his bloody clothes, the cell phones, and the
gun somewhere on I-77 or I-71.
C. The autopsies
{¶ 13} Renée Robinson, a Stark County deputy coroner, performed
autopsies on both victims. She concluded that gunshot wounds were the cause of
death in each case. Blunt-force trauma to Bobbi’s head and neck also contributed
to her death.
{¶ 14} According to Dr. Robinson, two bullets struck Gene on the right side
of his chest, one of which exited the left side of his body. A third bullet entered his
“left flank” and was recovered in his “right buttock.”
{¶ 15} Dr. Robinson determined that Bobbi had suffered gunshot wounds
to the right side of her head and left shoulder. She also sustained multiple blunt-
force injuries to her torso, left and right upper extremities, right foot, neck, and
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head. One side of Bobbi’s skull had been crushed, resulting in significant bleeding
around her brain.
II. TRIAL-COURT PROCEEDINGS
{¶ 16} Brinkman was charged in the Stark County Court of Common Pleas
with six counts:
Counts Charges Death Specifications Other Specifications
Aggravated murder of Gene under
Each count included a course-
R.C. 2903.01(B) (felony murder
1 of-conduct specification
predicated on aggravated burglary
under R.C. 2929.04(A)(5)
and/or aggravated robbery)
and two felony-murder
specifications based on the
Counts 1 through 5 each
commission of aggravated
Aggravated murder of Bobbi carried a firearm
burglary and aggravated
under R.C. 2903.01(B) (felony specification under R.C.
robbery as the principal
2 murder predicated on aggravated 2941.145(A).
offender under R.C.
burglary and/or aggravated
2929.04(A)(7).
robbery)
3 Aggravated burglary by trespass
4 Aggravated robbery of Gene
5 Aggravated robbery of Bobbi
6 Tampering with evidence
{¶ 17} Brinkman initially pleaded not guilty, but he ultimately decided to
waive his right to a jury trial and enter guilty pleas to every count in the indictment.
The trial court accepted Brinkman’s jury waiver and guilty pleas.
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{¶ 18} Under Ohio law, after a three-judge panel accepts a guilty plea in a
death-penalty case, the panel must conduct an evidentiary hearing to determine
whether the defendant is guilty of aggravated murder or a lesser offense. R.C.
2945.06; Crim.R. 11(C)(3); see also State v. Green, 81 Ohio St.3d 100, 101, 689
N.E.2d 556 (1998). In this case, the parties presented the panel with a document
titled “Stipulated Facts,” which the court admitted into evidence. The panel
confirmed that Brinkman understood the stipulation and its contents, as well as its
legal effect. Additionally, the state presented four witnesses during Brinkman’s
plea hearing: two Stark County Sheriff’s Office deputies, Gene’s son Jason, and
one of Gene and Bobbi’s neighbors, Jeffrey Wagner. The panel found Brinkman
guilty on all counts and specifications in the indictment.
{¶ 19} With respect to each of the two aggravated-murder counts, the panel
merged the aggravating circumstances (aggravated burglary/principal offender) in
the second death specification with the aggravating circumstances (aggravated
robbery/principal offender) in the third death specification. The panel also found
that Brinkman’s separate convictions for aggravated burglary and aggravated
robbery under Counts 3, 4, and 5 merged with his aggravated-murder convictions
under Counts 1 and 2 for purposes of sentencing.
{¶ 20} The case then continued to the mitigation phase. At the mitigation
hearing, Brinkman made an unsworn statement, offered the testimony of five
witnesses, and presented documentary evidence. After deliberating, the panel
sentenced Brinkman to death on both aggravated-murder counts, a concurrent 36-
month prison term for the tampering-with-evidence count, and a consecutive six-
year prison term for the firearm specifications. The court also imposed mandatory
postrelease control for the aggravated-burglary and aggravated-robbery convictions
and told Brinkman that he would be required to register with Ohio’s Violent
Offender Database pursuant to R.C. 2903.41 through 2903.44 (“Sierah’s Law”) if
he were ever released.
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III. INDICTMENT AND PLEA-HEARING ISSUES
A. Insufficient indictment
{¶ 21} We begin with Brinkman’s eleventh proposition of law, in which he
argues that a capital indictment is insufficient when it fails to state “the final and
specific element necessary for a death sentence: that the aggravating
circumstance(s) outweigh the mitigating factor(s) beyond a reasonable doubt.”
{¶ 22} We have previously rejected the argument that the United States or
Ohio Constitutions require that a capital indictment include an allegation that the
aggravating circumstances outweigh the mitigating factors. See State v. Sowell,
148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 125-128. In Sowell, the
appellant alleged, as Brinkman does here, that an allegation “that the aggravating
circumstances outweigh the mitigating factors is ‘the functional equivalent of an
element’ * * * of the capital offense, because a jury’s determination that the
aggravating circumstances outweigh the mitigating factors is required for a death
sentence under Ohio law.” Id. at ¶ 125, quoting Apprendi v. New Jersey, 530 U.S.
466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), fn. 19. We disagreed and held
that when, as here, an indictment for capital charges tracks the language of R.C.
2903.01(A) or (B) and the death specifications track the language of R.C.
2929.04(A)(5) or (A)(7), the indictment satisfies all federal and state constitutional
requirements. Sowell at ¶ 128.
{¶ 23} On the authority of Sowell, we reject Brinkman’s eleventh
proposition of law.
B. Jury-waiver colloquy
{¶ 24} Next, we address Brinkman’s tenth proposition of law, in which he
asserts that the trial court’s jury-waiver colloquy was inadequate, thereby denying
him a fair trial and due process.
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1. Background
{¶ 25} On the day Brinkman entered his guilty pleas, the presiding judge
asked him whether he understood that by waiving his right to a jury trial, the panel
would be the trier of fact and sentencer in his case. Brinkman affirmed that he
wanted to waive a jury and signed a jury-waiver form.
{¶ 26} The panel then conducted a comprehensive guilty-plea colloquy.
First, Brinkman assented that he was prepared to enter guilty pleas to all the
offenses in the indictment. The court then went over each count and specification
in the indictment. The panel also explained the procedure for a capital trial—
including death-qualification voir dire, the burden of proof, the elements of the
offenses, the mitigation phase, and the weighing process used to consider mitigation
evidence—and it discussed the nature and circumstances of the offenses.
{¶ 27} The court presented Brinkman with the plea form that he had signed
and read the form aloud to ensure that Brinkman understood the charged offenses,
the potential penalties for each charge, and how certain offenses may be merged for
purposes of sentencing. The court explained the maximum sentences for each
noncapital count and addressed the additional consequences of being convicted on
those counts.
{¶ 28} The panel also reviewed the stipulated facts and verified that
Brinkman understood that the panel must consider those facts and admit the
stipulated exhibits. The court explained that based on the stipulated facts, the panel
most likely would find that Brinkman committed the aggravated murders and was
guilty of the attached specifications. The court also indicated that it would permit
Brinkman to withdraw his pleas if the panel, “after hearing the evidence,” found
that the facts did not support one or more of the aggravated-murder charges.
{¶ 29} Next, the panel discussed the constitutional rights that Brinkman
would be waiving and ensured that Brinkman understood each right. At the
conclusion of the colloquy, the panel determined that Brinkman had knowingly,
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intelligently, and voluntarily waived his right to a jury trial and that he understood
the nature of the offenses and the maximum penalties.
2. Analysis
{¶ 30} Brinkman argues that the trial court erred by failing to advise him
that he could withdraw his plea at any time prior to the state’s presentation of its
case. But Brinkman fails to point to any procedural rule or statute that required the
trial court to give that advisement. To be valid, a jury waiver under R.C. 2945.05
must meet five conditions: “It must be (1) in writing, (2) signed by the defendant,
(3) filed, (4) made part of the record, and (5) made in open court.” State v. Lomax,
114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 9. A written jury waiver
creates a rebuttable presumption that the waiver was knowing, intelligent, and
voluntary. Id. at ¶ 10.
{¶ 31} The trial court strictly complied with R.C. 2945.05. The court
addressed Brinkman’s request to waive his right to a jury in open court and verified
that he had knowingly, intelligently, and voluntarily signed the jury waiver. The
court filed the signed waiver with the clerk. Nothing more was required. See State
v. Jells, 53 Ohio St.3d 22, 25-26, 559 N.E.2d 464 (1990) (“There is no requirement
in Ohio for the trial court to interrogate a defendant in order to determine whether
he or she is fully apprised of the right to a jury trial. The Criminal Rules and the
Revised Code are satisfied by a written waiver, signed by the defendant, filed with
the court, and made in open court, after arraignment and opportunity to consult with
counsel”).
{¶ 32} Brinkman also argues that the trial court erred by failing to advise
him that his jury waiver would negatively affect any appellate challenge to the trial
court’s evidentiary rulings. Brinkman acknowledges that we have rejected this and
similar arguments in prior capital cases. See State v. Baston, 85 Ohio St.3d 418,
421-422, 709 N.E.2d 128 (1999) (confirming that the trial court is not required to
engage in a thorough discussion of all the implications of a jury waiver). He urges
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us to reconsider our decision in Baston and hold that a “trial court should inform a
defendant prior to accepting his jury waiver of the ramifications for his appeal.”
We decline to do so, in line with our precedent. See, e.g., State v. Thomas, 97 Ohio
St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 25-27 (noting “the usual
presumption that in a bench trial in a criminal case the court considered only the
relevant, material, and competent evidence in arriving at its judgment unless it
affirmatively appears to the contrary” and rejecting the argument that “the trial
court was required by the Constitution to ensure that [the defendant] understood
that this presumption would be applied on appellate review if he waived a jury trial”
[cleaned up]).
{¶ 33} We therefore hold that the trial court did not err in its jury-waiver
colloquy and reject Brinkman’s tenth proposition of law.
3. Ineffective assistance of counsel during the jury-waiver colloquy
{¶ 34} In his second proposition of law, Brinkman asserts that his defense
counsel was ineffective for not objecting to the trial court’s failure to tell him that
he could withdraw his jury waiver at any time prior to the state’s presentation of its
case. To establish ineffective assistance, Brinkman must show that his counsel’s
representation was deficient and that he was prejudiced as a result. See Strickland
v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the
syllabus. As we explained above, the trial court complied with R.C. 2945.05, so
defense counsel was not deficient for failing to object. We therefore reject
Brinkman’s claim of ineffective assistance regarding this issue.
C. Gruesome photographs
{¶ 35} We turn now to Brinkman’s third proposition of law, in which he
challenges the admission of gruesome crime-scene and autopsy photographs during
both the guilt and mitigation phases.
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{¶ 36} Relevant evidence is generally admissible, Evid.R. 402, unless “its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury,” Evid.R. 403(A). And a court
may exclude relevant evidence “if its probative value is substantially outweighed
by considerations of undue delay, or needless presentation of cumulative evidence.”
Evid.R. 403(B).
{¶ 37} Brinkman asks us to apply a heightened standard when reviewing
the admission of gruesome photographs in a capital case, saying that such evidence
is admissible only if its probative value outweighs its prejudicial impact and it is
neither repetitive nor cumulative. See, e.g., State v. Mammone, 139 Ohio St.3d 467,
2014-Ohio-1942, 13 N.E.3d 1051, ¶ 96, citing State v. Morales, 32 Ohio St.3d 252,
258, 513 N.E.2d 267 (1987); contra State v. Maurer, 15 Ohio St.3d 239, 264-266,
473 N.E.2d 768 (1984) (applying Evid.R. 403). It is not necessary to decide here
whether this court should apply the Rules of Evidence or a heightened standard
when reviewing the admission of gruesome photographs in capital cases. Even
under a heightened standard, we find no error in the trial court’s decision to admit
the photographs in question.
{¶ 38} Although the parties submitted written stipulated facts and exhibits
prior to the plea hearing, defense counsel objected at the end of the hearing to 13
photographs included in the stipulations. The disputed photographs depict the
bodies of Brinkman’s victims at the crime scene and during the autopsies.
{¶ 39} At the plea hearing, the court sustained Brinkman’s objection to one
of the photographs, which appeared to show brain matter on the head of one of the
victims, but it overruled his objections to the other photographs. In the mitigation
phase, the state moved to readmit all the plea-hearing evidence. Defense counsel
did not make any additional objections, and the trial court readmitted all but one of
the previously admitted exhibits.
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{¶ 40} “Balancing the risks and benefits of the evidence necessarily
involves an exercise of judgment; thus, the trial court’s determination should be
reviewed for an abuse of discretion.” State v. Hartman, 161 Ohio St.3d 214, 2020-
Ohio-4440, 161 N.E.3d 651, ¶ 30. Brinkman argues that the trial court abused its
discretion when it admitted the challenged photographs because each had a
prejudicial impact greater than its probative value. He also asserts that the
photographs may have emotionally swayed the panel at sentencing. His arguments
lack merit.
{¶ 41} Setting aside the fact that Brinkman stipulated to the exhibits, we
note that only four of the admitted crime-scene photographs depict bloodstains,
blood spatter, or the victims. These photographs appropriately showed the extent
of the victims’ injuries and their positions in the guest bedroom. See Mammone,
139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 103; State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 139-140.
Brinkman argues that the photographs were unnecessary because the autopsy
reports and death certificates were sufficient to establish the manner, mode, and
cause of the victims’ deaths, but that does not render them inadmissible. See
Mammone at ¶ 99.
{¶ 42} The trial court did not abuse its discretion in admitting the
challenged photographs. Finding no error, we reject Brinkman’s third proposition
of law.
D. Proper procedure under R.C. 2945.06
{¶ 43} In his fourth proposition of law, Brinkman contends that the trial
court erred to his prejudice when the presiding judge determined the admissibility
of evidence during the plea hearing without the contemporaneous input of the rest
of the panel.
{¶ 44} The presiding judge stated:
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[T]he case is considered complete at this point for purposes
of the panel to recess and deliberate, so I will ask my colleagues to
go ahead and recess for that purpose and I will join them in just a
moment once I have determined which exhibits I will be bringing
back with me to engage in our deliberations.
The presiding judge then released the other two judges and heard arguments for and
against the admission of the evidence. As noted above, the presiding judge
overruled the defense’s objections as to 12 of the photographs but sustained its
objection to an autopsy photograph that appeared to depict brain matter.
{¶ 45} Although Brinkman’s proposition frames this issue as a
constitutional one, he argues only that the court failed to strictly comply with R.C.
2945.06. But Brinkman did not object when the presiding judge indicated that she
would rule on his objections to the exhibits without the rest of the panel. Thus, he
has forfeited this claim, absent plain error. See Crim.R. 52(B); Thomas, 97 Ohio
St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, at ¶ 58 (a claim that a three-judge
panel failed to follow the requirements of R.C. 2945.06 with respect to evidentiary
rulings may be forfeited and, if so, the claim is subject to review for plain error).
To prevail, Brinkman must show that an error occurred, that the error was plain,
and that the error affected substantial rights—which we have interpreted to mean
that the error affected the outcome of the trial. See State v. Rogers, 143 Ohio St.3d
385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
{¶ 46} Brinkman has not made that showing. He does not contend that any
of the exhibits were categorically inadmissible. Rather, he speculates that the other
two judges might have found that the prejudicial impact of the photographs of the
victims at the crime scene and during the autopsies outweighed their probative
value and that absent that evidence, the panel might not have found him guilty. Yet
he fails to explain how the exclusion of any of the challenged exhibits from the plea
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hearing would have undermined the state’s evidence on any of the elements of the
offenses charged. Thus, Brinkman has not demonstrated a reasonable probability
that the outcome of the proceeding would have been different had the entire panel
ruled on his evidentiary challenges. We therefore reject his fourth proposition of
law.
{¶ 47} And because Brinkman has not shown that he was prejudiced by the
presiding judge’s having ruled on his evidentiary objections without input from the
other judges, we reject the ineffective-assistance claim raised in Brinkman’s second
proposition of law regarding counsel’s failure to object to this procedure.
IV. MITIGATION-PHASE ISSUES
A. Prosecutorial misconduct
{¶ 48} In his first proposition of law, Brinkman argues that the state made
multiple improper arguments during its mitigation-phase closing argument that
collectively deprived him of a fair trial and due process. We disagree.
{¶ 49} “When reviewing a claim of prosecutorial misconduct, our inquiry
is twofold: we must first decide whether the prosecutor’s actions were improper,
and if so, we consider whether the conduct prejudicially affected the defendant’s
substantial rights.” State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157
N.E.3d 716, ¶ 115. Rooted as it is in the right to due process of law, a prosecutorial-
misconduct claim requires us to analyze “whether the prosecutor’s comments ‘ “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” ’ ” Id., quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). “ ‘The touchstone of due process
analysis * * * is the fairness of the trial, not the culpability of the prosecutor.’ ”
(Ellipsis added in Kirkland.) Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102
S.Ct. 940, 71 L.Ed.2d 78 (1982).
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1. The prosecutor’s arguments were supported by the evidence
{¶ 50} Brinkman argued in mitigation that he murdered the Johns in a
“spontaneous reaction” to their criticism of him. The state countered that the
physical evidence and Brinkman’s statements to police showed his plan to murder
the Johns.
{¶ 51} Brinkman contends that the stipulated facts do not support the state’s
theory that his theft of the Johns’ money and cell phones was the impetus for the
murders. He maintains that the state improperly referred to facts outside the
stipulations and that this prejudiced him because “the panel adopted the State’s
argument concerning the robbery in both its statements at sentencing and in its
[sentencing] opinion.”
{¶ 52} But the stipulated evidence included Brinkman’s statements to
police, which supported the state’s theory. Moreover, Brinkman’s argument that
he spontaneously murdered the Johns is undermined by the physical evidence.
Deputy Kennedy testified that the exterior handle of the guest-bedroom door
appeared to have been either shot off or broken off. Investigators located a bullet
fragment in the doorjamb and found the broken door handle on a stand inside the
guest bedroom. When questioned by Deputy Stauffer, Brinkman said that he had
no idea that the door handle had been broken and claimed that he had closed the
door when he left the room. But Jason reported that the door handle was missing
when he arrived and that he had to use his multi-tool to open the door.
{¶ 53} Brinkman’s version of events did not account for that evidence. And
based on that evidence, the state reasonably argued that the Johns had tried to lock
themselves in the bedroom and that Brinkman shot off the handle to get inside the
room. Brinkman has failed to show that the prosecutor’s arguments were improper.
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2. The state did not convert the nature and circumstances of Brinkman’s offenses
into nonstatutory aggravating factors
{¶ 54} In an attempt to explain why he had had Gene’s gun out, Brinkman
told police that he had just been “curious” about it. In his closing, the prosecutor
argued that Brinkman’s explanation was not credible and pointed out that Brinkman
did not have to load the gun in order to “fiddle around and play with it.” The trial
court overruled the defense’s objection, concluding that the prosecutor’s argument
was directed at the aggravated-robbery aggravating circumstance and was not
improper. Brinkman contends that the prosecutor’s argument converted the nature
and circumstances of the murders into a nonstatutory aggravating factor and that he
was prejudiced because the panel adopted the state’s argument in its sentencing
opinion.
{¶ 55} We have held that “counsel for the state at the penalty stage of a
capital trial may introduce and comment upon (1) any evidence raised at trial that
is relevant to the aggravating circumstances * * * [and] (2) any other testimony or
evidence relevant to the nature and circumstances of the aggravating circumstances
* * * of which the defendant was found guilty.” State v. Gumm, 73 Ohio St.3d 413,
653 N.E.2d 253 (1995), syllabus. “[I]t is perfectly acceptable for the state to present
arguments concerning the nature and circumstances of the offense. However, * * *
it is wholly improper for the state to argue or suggest that the nature and
circumstances of the offense are ‘aggravating circumstances.’ ” (Emphasis
deleted.) State v. Wogenstahl, 75 Ohio St.3d 344, 355, 662 N.E.2d 311 (1996),
quoting R.C. 2929.04.
{¶ 56} The state’s argument was fair comment on the evidence supporting
the aggravating circumstances alleged in the indictment. At no point did the state
argue that the nature and circumstances of the offenses were themselves
aggravating circumstances. The prosecutor was within his discretion to argue that
the aggravating circumstances outweighed the mitigating evidence, and he properly
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incorporated facts relating to the offenses into his broader argument. See State v.
Smith, 87 Ohio St.3d 424, 444, 721 N.E.2d 93 (2000) (“prosecutors may
legitimately refer to the nature and circumstances of the offense, both to refute any
suggestion that they are mitigating and to explain why the specified aggravating
circumstance outweighs the mitigating factors”).
3. The state did not argue nonstatutory aggravating circumstances
{¶ 57} Brinkman similarly contends that the prosecutor’s references to the
ages and professions of the victims during the state’s mitigation-phase closing
argument constituted an improper attempt to convert the statuses of the victims into
aggravating factors supporting a death sentence.
{¶ 58} We disagree. The prosecutor’s references to the ages of the victims
and their careers—including Gene’s status as a war veteran—did not imply that the
victims’ personal characteristics were aggravating circumstances. Rather, these
facts were incorporated into the state’s argument explicitly addressing the course-
of-conduct and aggravated-burglary aggravating circumstances.
{¶ 59} Finding no prosecutorial misconduct, we reject Brinkman’s first
proposition of law. And because we conclude that no part of the prosecutor’s
mitigation-phase closing argument was improper, we also overrule Brinkman’s
claim in his second proposition of law that his counsel was ineffective for failing
to object to the alleged instances of misconduct.
B. Ineffective assistance of counsel during the mitigation phase
{¶ 60} In his second proposition of law, Brinkman asserts that he was
deprived of the effective assistance of counsel during the mitigation phase. He
contends that his counsel did not adequately prepare for the mitigation hearing and
should have retained a pharmacological expert to discuss the effects his medications
had on him on the day of the murders.
{¶ 61} “ ‘Defense counsel has a duty to investigate the circumstances of his
client’s case and explore all matters relevant to the merits of the case and the
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penalty, including the defendant’s background, education, employment records,
mental and emotional stability, and family relationships.’ ” State v. Pickens, 141
Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 219, overruled on other
grounds, State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475, and
quoting Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). Although
“strategic choices made after thorough investigation of law and facts * * * are
virtually unchallengeable[,] strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-
691, 104 S.Ct. 2052, 80 L.Ed.2d 674. But “[t]he decision to forgo the presentation
of additional mitigating evidence does not itself constitute proof of ineffective
assistance of counsel.” State v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47(1997).
{¶ 62} Dr. Bob Stinson, a board-certified forensic psychologist who the
defense retained for mitigation, testified that Brinkman had been taking Cymbalta
and Gabapentin to treat his mental-health disorders and his pain caused by diabetes,
and that his doses had been doubled shortly before the offenses. At the conclusion
of Dr. Stinson’s testimony, one of the judges inquired whether there were any side
effects to Brinkman’s medications that they should be aware of. Dr. Stinson
responded that he did not “feel comfortable” answering that question because it was
outside his expertise.
{¶ 63} Nothing in the record suggests that either of the medications had
negatively affected Brinkman’s mental health or decision-making. Thus,
Brinkman’s argument that defense counsel should have called an expert to testify
about his medications is purely speculative. Moreover, the record does not indicate
that defense counsel failed to investigate and consider the possibility of presenting
additional mitigation evidence. It is Brinkman’s burden to prove that counsel
performed ineffectively, and this court will not “infer a defense failure to
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investigate from a silent record.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-
2762, 890 N.E.2d 263, ¶ 244.
{¶ 64} We therefore reject Brinkman’s claim of ineffective assistance based
on his counsel’s performance during the mitigation hearing.
C. Sentencing hearing and sentencing opinion
{¶ 65} In his fifth proposition of law, Brinkman contends that the three-
judge panel erred in determining that the aggravating circumstances outweighed
the mitigating factors. Brinkman alleges that the panel improperly relied on
contradictory facts and nonstatutory aggravating circumstances and that this
prejudiced him by making “the robberies and murders part of an orchestrated plan
as opposed to his spontaneous reaction to the owner’s criticism[,] which was his
theory in mitigation.”
{¶ 66} But as we explained above, the evidence supported the state’s theory
that Brinkman’s intent was to murder the Johns for their money. Brinkman’s
statements and the physical evidence show that the Johns attempted to lock
themselves in the guest bedroom and that Brinkman shot the door handle off to get
in. Once in the bedroom, Brinkman shot Gene three times and bludgeoned, shot,
and suffocated Bobbi before stealing the couple’s cell phones and cash.
{¶ 67} Brinkman also generally argues that the three-judge panel
erroneously discounted his mitigating evidence. To the contrary, the panel’s
sentencing opinion demonstrates that it considered all the mitigating evidence
submitted by Brinkman, including Dr. Stinson’s report and his conclusions that
Brinkman had suffered from multiple untreated mental-health disorders.
Moreover, any error in assigning weight to any of the mitigating factors may be
cured during our independent analysis of Brinkman’s death sentences. See
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, at ¶ 155.
{¶ 68} Based on the foregoing, we reject Brinkman’s fifth proposition of
law.
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V. CHALLENGES TO THE SENTENCE
A. Lethal injection
1. United States Constitution
{¶ 69} In his seventh proposition of law, Brinkman contends that his death
sentences are invalid under the Eighth and Fourteenth Amendments to the United
States Constitution because the state is unable to comply with the constitutional
requirements to execute a capital defendant.
{¶ 70} To prevail on an Eighth Amendment method-of-execution claim, the
defendant must establish that the method presents a risk that is “sure or very likely
to cause serious illness and needless suffering” and gives rise to “sufficiently
imminent dangers.” Glossip v. Gross, 576 U.S. 863, 877, 135 S.Ct. 2726, 192
L.Ed.2d 761 (2015) (cleaned up). Upon making the first showing, the defendant
must also identify “an alternative that is ‘feasible, readily implemented, and in fact
significantly reduce[s] a substantial risk of severe pain.’ ” (Brackets added in
Glossip.) Id., quoting Baze v. Rees, 553 U.S. 35, 52, 128 S.Ct. 1520, 170 L.Ed.2d
420 (2008).
{¶ 71} Brinkman’s argument relates to the first question—whether Ohio’s
lethal-injection protocol presents a substantial and objectively intolerable risk of
serious harm. See id., citing Baze at 50. He contends that the initial injection of
the 500-miligram dose of Midazolam itself causes pain and that the Midazolam
fails to adequately anesthetize the inmate prior to the injection of two other drugs
known to cause pain. The United States Court of Appeals for the Sixth Circuit
recently rejected a similar argument and upheld Ohio’s lethal-injection protocol,
concluding that there was no evidence establishing that the three-drug protocol was
“ ‘sure or very likely’ to cause serious pain” in the constitutional sense. In re Ohio
Execution Protocol, 946 F.3d 287, 290-291 (6th Cir.2019), quoting Glossip at 877.
The record in this case does not compel a different result. Moreover, Brinkman has
not argued that there is a feasible alternative method of execution, which is required
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to sustain an Eighth Amendment challenge to a method of execution. See Glossip
at 877.
{¶ 72} As additional support for his claim that Ohio’s lethal-injection
procedure is unconstitutional, Brinkman refers to prior instances of prolonged or
abandoned execution attempts by the state. But he cites only one such event since
Ohio’s adoption of the current protocol and otherwise fails to establish that that
isolated incident demonstrates an objectively intolerable risk of harm with respect
to his own sentence. See Baze at 50.
{¶ 73} Accordingly, we reject Brinkman’s Eighth Amendment claim.
2. Ohio Constitution
{¶ 74} Article I, Section 9 of the Ohio Constitution provides, “Excessive
bail shall not be required; nor excessive fines imposed; nor cruel and unusual
punishments inflicted.” This court has held that the Ohio Constitution is a
“document of independent force.” Arnold v. Cleveland, 67 Ohio St.3d 35, 42, 616
N.E.2d 163 (1993). Brinkman has failed to advance any argument based on the
unique text, structure, and history of the Ohio Constitution to establish that his
sentence violates Article I, Section 9. Thus, we overrule Brinkman’s seventh
proposition of law.
B. Ohio’s Violent-Offender Registry
{¶ 75} In his ninth proposition of law, Brinkman contends that the statutes
requiring him to register with Ohio’s Violent Offender Database (Sierah’s Law) are
unconstitutionally retroactive. We recently rejected this argument in State v.
Hubbard, 167 Ohio St.3d 77, 2021-Ohio-3710, __ N.E.3d __ (plurality opinion),
and thus we have little difficulty overruling Brinkman’s ninth proposition of law.
We likewise reject the ineffective-assistance claim raised in Brinkman’s second
proposition of law regarding counsel’s failure to object to the trial court’s
application of Sierah’s Law.
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C. Improper imposition of postrelease control
{¶ 76} Brinkman contends in his eighth proposition of law that the trial
court erred by imposing postrelease control for his aggravated-burglary and
aggravated-robbery convictions. We agree.
{¶ 77} Although Brinkman was convicted on all counts in the indictment,
the trial court merged Counts 3, 4, and 5 (aggravated burglary and aggravated
robberies of Gene and Bobbi) into Counts 1 and 2 (aggravated murders of Gene
and Bobbi) for sentencing purposes. Consequently, the court did “not impose
additional sentence[s] on Count Three, Count Four, or Count Five.” But in its
sentencing opinion, the trial court did impose postrelease control for Counts 3
through 5.
{¶ 78} “[W]hen a trial court concludes that an accused has in fact been
found guilty of allied offenses of similar import, it cannot impose a separate
sentence for each offense.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-
7658, 71 N.E.3d 234, ¶ 28, overruled on other grounds, State v. Henderson, 161
Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776. Thus, a trial court may not
sentence a defendant on merged counts, and that includes the imposition of
postrelease control on those counts. Therefore, we remand Brinkman’s case to the
trial court with instructions for it to correct the sentencing entry by deleting the
paragraphs imposing postrelease control for Counts 3, 4, and 5. See State v. Ortiz,
2016-Ohio-4813, 68 N.E.3d 188, ¶ 10 (7th Dist.). By doing so, we render moot
Brinkman’s claim in his second proposition of law that his defense counsel was
ineffective for failing to object to the improper imposition of postrelease control.
D. Constitutional challenges to Ohio’s death-penalty statutes
{¶ 79} In his sixth and twelfth propositions of law, Brinkman raises
multiple constitutional challenges to Ohio’s death-penalty statutes and asserts that
they violate international law and treaties. We have repeatedly rejected the same
arguments in other cases. See State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-
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1462, 108 N.E.3d 56, ¶ 21; State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581,
74 N.E.3d 319, ¶ 80-81; State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15
N.E.3d 818, ¶ 106, 109-110, 112-113, 116-120; State v. Jenkins, 15 Ohio St.3d 164,
168-173, 473 N.E.2d 264 (1984). We therefore summarily overrule Brinkman’s
sixth and twelfth propositions of law. See State v. Poindexter, 36 Ohio St.3d 1, 520
N.E.2d 568 (1988), syllabus; State v. Spisak, 36 Ohio St.3d 80, 82, 521 N.E.2d 800(1988).
{¶ 80} We likewise reject Brinkman’s claim that his counsel was ineffective
for failing to object to the constitutionality of Ohio’s death-penalty procedures on
these settled grounds. And having found no instances of ineffective assistance of
counsel, we overrule Brinkman’s second proposition of law in its entirety.
E. Cumulative error
{¶ 81} In his thirteenth proposition of law, Brinkman argues that this court
should reverse his convictions and death sentences because error pervaded the trial
proceedings. Under the cumulative-error doctrine, “a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial
even though each of the numerous instances of trial-court error does not
individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. We have found only one error—the trial
court’s imposition of postrelease control for counts that had been merged for
sentencing. Thus, the doctrine of cumulative error does not apply to this case, and
we overrule this proposition of law.
VI. INDEPENDENT SENTENCE EVALUATION
{¶ 82} Under R.C. 2929.05, this court has a duty to independently review
Brinkman’s death sentences. We must determine whether the evidence supports
the panel’s findings of aggravating circumstances, whether the aggravating
circumstances outweigh the mitigating factors, and whether the death sentences are
proportionate to those that have been affirmed in similar cases. R.C. 2929.05(A).
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A. Aggravating circumstances
{¶ 83} Brinkman pleaded guilty to two counts of aggravated murder. Each
aggravated-murder count included three capital specifications: one under R.C.
2929.04(A)(5) (course of conduct involving the purposeful killing of two or more
persons) and two under R.C. 2929.04(A)(7) (aggravated murder committed during
aggravated burglary and during aggravated robbery). Before sentencing, the trial
court merged the second capital specification (aggravated burglary) and the third
capital specification (aggravated robbery) for each count of aggravated murder.
Thus, as to both aggravated-murder counts, the panel considered two aggravating
circumstances: course of conduct and aggravated murder committed during
aggravated burglary.
{¶ 84} The evidence in the record overwhelmingly supports the panel’s
determination as to the course-of-conduct specifications. The victims, a married
couple, were shot at close range in the same room as part of a single episode. See
State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 52
(course-of-conduct aggravating circumstance requires a “factual link” between the
murders).
{¶ 85} The evidence also supports Brinkman’s convictions as the principal
offender in carrying out the aggravated murders while committing or fleeing
immediately after committing aggravated burglary. See R.C. 2929.04(A)(7).
Brinkman’s own statements to police indicate that he remained in the Johns’ home
after they returned from vacation and that he ordered them to the guest bedroom at
gunpoint. The physical evidence and the statements that Brinkman made to police
support a finding that he intended to murder the Johns and had planned to rob them
so that he could leave town.
B. Mitigating evidence
{¶ 86} We must weigh the aggravating circumstances discussed above
against any mitigating evidence concerning “the nature and circumstances of the
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offense” and Brinkman’s “history, character, and background.” See R.C.
2929.04(B). We must also consider and weigh any evidence of the mitigating
factors outlined in R.C. 2929.04(B)(1) through (7).
{¶ 87} In mitigation, Brinkman presented his own unsworn statement, the
testimony of five witnesses, and other documentary evidence.
1. Brinkman’s unsworn statement
{¶ 88} Brinkman made the following unsworn statement:
I and I alone was responsible for what happened to Gene and Bobbi.
They were extremely kind, caring and wonderful people who did not
deserve to be killed by me. And to make things even worse, I lied
to Jason and he ended up finding [the bodies]. That’s horrible and
[i]nexcusable.
I’m so very sorry for all the pain and suffering I have caused
the families and friends of Gene and Bobbi. I know that will never
be enough but it’s all I have.
***
I’m not going to sit here and ask for mercy. Honestly, I do
not deserve it. I deserve the maximum penalty allowed and that’s
the death penalty. There should be absolutely zero doubt about that.
In this case the aggravating circumstances do far outweigh
any possible mitigating factors.
***
[T]his is about justice being served, and anything less than a
sentence of death would not be justice. The family deserves that
justice; that’s all that matters now.
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2. History, character, and background
{¶ 89} Most of the evidence about Brinkman’s history, character, and
background came from the testimony of forensic-psychologist Dr. Stinson and from
Brinkman’s exhibits. Based on his evaluation of Brinkman, Dr. Stinson suggested
that 15 significant mitigating factors applied. We have combined some of Dr.
Stinson’s proposed mitigating factors for purposes of our review.
{¶ 90} Brinkman’s parents are Barbara Brinkman Leon and George
Brinkman Sr. Barbara gave birth to Brinkman in 1972, when she was about 17
years old. She subsequently had another son, Steven. Barbara reportedly smoked
and drank alcohol even after she found out about her pregnancies.
{¶ 91} George Sr. was a truck driver and was gone most of the time. But
when George Sr. was home, he reportedly drank heavily and physically and
emotionally abused Brinkman and his mother and brother. One of Brinkman’s
earliest memories is of his parents, aunts, and uncles “sitting around and smoking
pot together.” George Sr. gave Brinkman and his brother alcohol when they were
young and took them to bars.
{¶ 92} George Sr. called Brinkman’s mother a “worthless bitch” and a
“whore” in front of the children. George Sr. demanded that Barbara be subservient
to him, “diminish[ed] [the family] as humans,” and threatened that they were all
replaceable. Brinkman would often “hear yelling and screaming and noises and
then his mom crying.”
{¶ 93} Brinkman recalled one day when his father was drunk and pointed a
gun at him, his brother, and his mother and “told them that they had to close their
eyes and he was going to shoot one of them and kind of went through the eenie
meenie miney mo and then clicked an empty gun.” Dr. Stinson opined that
Brinkman was “obviously emotionally tormented during that process believing that
one of them might in fact be * * * shot while the dad was drunk and * * * doing
that.”
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{¶ 94} When Brinkman was about eight years old, Barbara left George Sr.,
taking Brinkman and his brother with her. But for the next 18 months, George Sr.
tormented and “chase[d] after the family—one time following them right into a
police station.” Barbara and her sons “spen[t] time * * * in shelters and even [went
as far as] California in an attempt to escape.” Brinkman said the day that his mother
left George Sr. was one of the happiest days of his life.
{¶ 95} When Brinkman was 19, Barbara allegedly kicked him out of the
house because she believed that he was using drugs. Brinkman came home to find
two black garbage bags filled with his belongings “waiting outside for him.”
Barbara reportedly had changed the locks and left Brinkman a note that said,
“That’s what you get for doing drugs.” Brinkman admitted that he drank alcohol
often during that period but said that he had not been using drugs.
{¶ 96} When he was in high school, Brinkman began dating Susan Kruse,
who he claimed “corrupted” him. Brinkman dropped out of school during his junior
year but later received his GED. Brinkman and Kruse had an on-again/off-again
relationship for years, and in 1991, she became pregnant with their son. Brinkman
moved in with Kruse, which he said was a mistake. Brinkman had wanted to break
the cycle of poor relationships between fathers and sons in his family and had hoped
that he and his son would be closer than he was to George Sr. But Brinkman
acknowledged that that had not worked out; he is estranged from his son.
{¶ 97} Barbara later married Jimmy Leon. Leon was mean, sexist, and
critical of Brinkman. But in Brinkman’s view, Leon was better than his biological
father because Leon did not beat Brinkman’s mother.
{¶ 98} Barbara and Leon stayed married until her death from a terminal
illness in 2013. Barbara’s treating physicians had initially told Brinkman that she
would likely recover, but shortly thereafter they said her disease was terminal.
According to Dr. Stinson, Barbara’s death put Brinkman through more of an
emotional roller coaster than many who suffer the loss of a parent. In addition,
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Barbara’s death “created additional conflict and tension and * * * ultimately a
separation between [Brinkman] and his stepfather.” Brinkman resented Leon for
failing to consult with him about his mother’s funeral arrangements.
{¶ 99} Brinkman’s brother committed suicide in 2015.
3. Military history
{¶ 100} When Brinkman was around 19 years old, he enlisted in the United
States Army. Dr. Stinson noted that on Brinkman’s enrollment forms, Brinkman
said that “he needed structure and he needed discipline and he wanted self-control.”
This was a pivotal time in Brinkman’s life. Dr. Stinson opined that the military
“had high potential to kind of extract him from this traumatic childhood and maybe
get him moving in the right direction.” But Brinkman was injured almost
immediately after joining and was released from his service. Brinkman indicated
that he had wanted to return to the Army after he recovered, but he never reenlisted.
4. Brinkman’s marriage and relationships
{¶ 101} Margaret (“Peggy”) Berry met Brinkman in an internet chat room
in 2001 and, after a few months, they met in person. In 2004, Brinkman and Peggy
married. Peggy testified that Brinkman had never physically abused her, though he
would “get a little moody if things didn’t go his way.” According to Peggy,
Brinkman had been “best friends” with his mother. Brinkman’s stepfather, Leon,
was critical of Brinkman and made sexist remarks toward Peggy in Brinkman’s
presence. Leon told Peggy that she should be with him instead of Brinkman, and
he asked Peggy out on dates while she was married to Brinkman.
{¶ 102} Peggy had multiple miscarriages during her marriage to Brinkman.
A doctor informed Peggy that prior physical abuse was the cause of the
miscarriages, and that news was hard on Brinkman. According to Peggy, Brinkman
had wanted to be a father and did not want to see Peggy hurting.
{¶ 103} Peggy and Brinkman divorced in 2007. Peggy later learned that
Brinkman had been diagnosed with diabetes and was homeless. Peggy said that
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January Term, 2022
although she was not close with Brinkman when his mother died or when his
brother committed suicide, she knew that “it crushed him.”
{¶ 104} Carole Bialoskurski had been friends with Brinkman since high
school, when they had a brief romantic relationship. Carole testified that Brinkman
was “generous, kind, and fun to be around” and that he never abused her. Carole
and Brinkman lost touch after high school and then reconnected in 2016. She
testified that when she saw Brinkman in 2016, after his diabetes diagnosis, his
appearance had changed a lot; he had become very thin, his face was drawn, and he
told Carole that he was depressed.
{¶ 105} Jack Holt met Brinkman in grade school, they were in Cub Scouts
together, and they remained friends throughout high school. Holt testified that he
and Brinkman lost contact for a time but rekindled their friendship in 2015. Holt
had heard about Brinkman’s homelessness, so he gave Brinkman gas money and
asked whether he wanted to apply for a maintenance position with the company
Holt worked for. Brinkman never applied for the job, but in 2015 and 2016,
Brinkman visited Holt’s house frequently and helped him build a deck in his back
yard.
{¶ 106} According to Holt, Brinkman was depressed after losing his
mother. Holt was concerned that Brinkman would try to hurt himself given
“everything that had been taking place with his family and [his] not being able to
find a real job or an actual real home to stay at.” So Holt talked Brinkman into
going to the Nord Center, which provided behavioral-health services in Lorain
County. Brinkman had an initial evaluation at the Nord Center, but their services
were not covered under his Medicaid plan. Holt did not know whether Brinkman
had followed the Nord Center’s recommendation that he contact a similar agency
in Cuyahoga County.
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5. Brinkman’s medical condition
{¶ 107} Brinkman was diagnosed with “ruptured discs” in 2008 and was
eventually diagnosed with “spinal canal stenosis,” which required him to manage
the resulting pain.
{¶ 108} In 2015, Brinkman was diagnosed with “uncontrolled and untreated
diabetes” and an aortic aneurysm. Dr. Stinson testified that Brinkman’s diabetes
was “pretty severe.” He explained that “[e]rratic insulin levels can have intense
effects on one’s mood, can cause blackouts, can affect thoughts, feelings and
behaviors,” and because Brinkman’s condition had been uncontrolled for so long,
he had “exhibit[ed] some erratic behaviors [that] resembled symptoms that you
would see in bipolar disorder but [they were] probably attributable to the diabetes.”
Brinkman experienced chronic neuropathic pain because of his diabetes, and he
was prescribed multiple pain medications in 2015 and 2016. But none of these
medications provided relief to Brinkman, and he eventually stopped taking them.
{¶ 109} Brinkman started taking Gabapentin for pain again in April 2016.
In March 2017, a few months before the offenses in this case, Brinkman was
prescribed Cymbalta to help alleviate his pain and treat his panic attacks.
Brinkman’s medical records indicate that the treating doctor was unsure whether
Brinkman was experiencing panic attacks due to anxiety or because of his
uncontrolled diabetes. Brinkman’s prescribed doses of Cymbalta and Gabapentin
were doubled shortly before the offenses.
{¶ 110} Brinkman also told Dr. Stinson that he had sustained multiple head
injuries over the course of his life. Brinkman reported that he had been hit in the
head with a baseball bat, beer bottles, and rocks. But on cross-examination, Dr.
Stinson admitted that he had never seen any medical records substantiating those
claims.
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6. Brinkman’s mental condition
{¶ 111} Dr. Stinson conducted a “mitigation evaluation for purposes of
potential sentencing.” He interviewed Brinkman for more than 13 hours over
several meetings. He also reviewed summaries of interviews that the defense’s
mitigation specialist had conducted with Brinkman, George Sr., and two of
Brinkman’s friends; earlier expert evaluations of Brinkman; and educational,
medical, mental-health, military, and prison and jail records.
{¶ 112} Dr. Stinson testified that there are ten possible “adverse childhood
experiences” (“ACEs”) that place a child at risk of negative outcomes by
interrupting the child’s neurodevelopment: (1) physical abuse, (2) emotional abuse,
(3) sexual abuse, (4) physical neglect, (5) emotional neglect, (6) parental divorce,
(7) witnessing one’s mother being treated violently, (8) substance abuse in the
home, (9) incarceration of a parent, and (10) mental-health problems in the family.
According to Dr. Stinson, “almost everybody has been exposed to one of [the
ACEs],” but “with each additional [ACE,] * * * the risk for negative outcomes goes
up, and by and large individuals who have experienced four or more are at the
highest risk for all sorts of negative outcomes.” Dr. Stinson determined that
Brinkman had had nine ACEs; the only one he did not report was sexual abuse.
{¶ 113} According to Dr. Stinson, 2015 was a “pivotal point [in Brinkman’s
life] that sent him in a downward spiral and * * * lands us where we’re at today.”
That year, Brinkman was diagnosed with multiple medical problems. He also broke
up with his girlfriend and then discovered that she had been abusing drugs and had
drained one of his financial accounts. Later that year, Brinkman’s brother
committed suicide and he became homeless.
{¶ 114} While homeless, Brinkman lived in his van, slept on others’
couches whenever he could, and traded work for lodging. He did some remodeling
of his stepfather’s condominium, where Brinkman’s mother had lived. Being back
in his mother’s last home brought up unresolved grief about her death. And
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Brinkman generally felt unvalued as an individual, sensing that people only valued
him if he could do something for them.
{¶ 115} Dr. Stinson diagnosed Brinkman with recurrent major depressive
disorder, which probably started in Brinkman’s childhood, post-traumatic stress
disorder (“PTSD”), borderline personality disorder, and substance-abuse disorders.
When Dr. Stinson reviewed Brinkman’s history, “it became apparent to [him] that
[Brinkman] had been depressed for a long time, probably since about elementary
school, * * * [and] probably owing to the dysfunction in his family and the abuse
that was happening in the home.”
{¶ 116} Brinkman’s ex-wife stated that Brinkman had been “suicidal since
he was a teenager—wanting to die for a long time.” Brinkman told Dr. Stinson
about his two suicide attempts and indicated that he “was thinking about suicide
shortly before his arrest.” Brinkman reported that his moods cycled between
extreme highs and lows within short periods. Dr. Stinson “considered that that
could be evidence of a bipolar disorder,” but he ultimately concluded that Brinkman
had “chronic depression * * * and [that] his mood is reactive because of the post-
traumatic stress that he experiences from his trauma history and his abuse.” Dr.
Stinson found it noteworthy that Brinkman had “guilt about things over which he
had no control,” such as when his brother was hit and dragged by a car or when his
friend had shot himself.
{¶ 117} Test results from Brinkman’s past evaluations were “very
consistent with somebody who was experiencing post-traumatic stress.” Dr.
Stinson further observed that Brinkman’s “history of trauma” (including his
childhood trauma) fueled his borderline personality disorder, which Dr. Stinson
explained is a chronic condition that impacts interpersonal relationships and mood
stability.
{¶ 118} Dr. Stinson also diagnosed Brinkman with substance-abuse
disorders related to his abuse of alcohol and marijuana. Brinkman tried to stop
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drinking in 2006 but returned to drinking “on at least three occasions.” Brinkman
said he started using drugs when he was about 15 years old. According to Dr.
Stinson, the diagnosis of substance-abuse disorders is “based on [a] pattern of use,
[a] history of use,” and as to alcohol, Brinkman met seven diagnostic criteria, which
categorized his disorder as severe. Brinkman’s marijuana use was categorized as
mild.
{¶ 119} Dr. Stinson noted that Brinkman had never had the mental-health
treatment that he needed and that Brinkman’s evaluation at the Nord Center in 2016
was “the one and only time that he sought mental health treatment or got any mental
health treatment other than while he’s been incarcerated.”
7. Acceptance of responsibility and adjustment to prison
{¶ 120} Dr. Stinson testified that Brinkman had “fully acknowledged his
responsibility,” noting that this was reflected in Brinkman’s decision “to accept
responsibility and in fact plead guilty to the charges.” Yet Dr. Stinson conceded
that he was “aware from the videos * * * that when [Brinkman] maybe was first
arrested, [he] didn’t readily acknowledge his responsibility” for the murders.
{¶ 121} While he was incarcerated pending trial, Brinkman wrote a letter to
Jason and his family, apologizing to them. He told them that he wished that he
“could take it all back” and acknowledged that he “caused the death of [Gene] &
Bobbi.” In a postscript, Brinkman added, “[T]he police treated me with respect and
have not forced me to say or do anything. I did this of my own free will so you
could start the healing process.”
{¶ 122} Dr. Stinson testified that Brinkman had “had no significant
problems while incarcerated.” He further opined that Brinkman was “probably
fairly well secured and * * * so he’s probably well controlled in that setting.” He
noted, however, that he had worked on other cases in which an “equally well
controlled” defendant had “acted out.”
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C. Sentence evaluation
{¶ 123} Brinkman grew up in a chaotic and violent household. Both of his
parents had exhibited substance-abuse problems. Brinkman’s father had routinely
beat Brinkman, and he often witnessed his father abusing his mother. For the first
ten years of his life, Brinkman’s mother “could not be fully emotionally available
because of [her own issues].” These experiences and their effects on Brinkman’s
mental health are the strongest mitigation in this case.
{¶ 124} Brinkman has had major depression and PTSD for much of his life,
and he never received adequate treatment. See State v. Graham, 164 Ohio St.3d
187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 209; State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423, 108 N.E.3d 1, ¶ 296; R.C. 2929.04(B)(7). He told Dr. Stinson
that his family had lacked the means to obtain mental-health help when he was
young and that he was not doing better in his adulthood. In fact, Brinkman was
homeless just before committing the offenses in this case.
{¶ 125} While this court has “seldom ascribed much weight in mitigation
to a defendant’s unstable or troubled childhood,” Kirkland, 160 Ohio St.3d 389,
2020-Ohio-4079, 157 N.E.3d 716, at ¶ 174, we do give this evidence some weight.
And we accord some weight to Brinkman’s history of experiencing and witnessing
trauma and abuse throughout his childhood, the effect of that history on his mental
health, and his untreated mental-health problems. See State v. Treesh, 90 Ohio
St.3d 460, 492, 739 N.E.2d 749 (2001) (considering evidence of mental-health
problems under R.C. 2929.04(B)(7) when the evidence did not satisfy the
requirements of R.C. 2929.04(B)(3)).
{¶ 126} Brinkman’s brief military service is entitled to some weight under
R.C. 2929.04(B)(7). See State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914,
12 N.E.3d 1112, ¶ 302. And the evidence showed that Brinkman displayed
appropriate behavior in jail, that he responds well to highly structured
environments, and that he would most likely easily transition into a model prison
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January Term, 2022
inmate. Thus, we also give Brinkman’s adjustment to incarceration some weight.
See State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 179.
{¶ 127} Brinkman expressed remorse in his unsworn statement,
acknowledging that Gene and Bobbi “were extremely kind, caring and wonderful
people who did not deserve to be killed.” But Brinkman’s showing of remorse in
court is undermined by the evidence that his initial confession was not truthful. See
Kirkland at ¶ 177. Despite physical evidence showing that the guest-bedroom door
had been shot open, Brinkman continued to deny having chased the Johns to that
location. Brinkman also never admitted that he had intentionally shot Gene,
knowing the gun was loaded. Instead, Brinkman said that the gun just “went off.”
Further, to avoid getting caught, Brinkman lied to Jason about Gene and Bobbi’s
whereabouts, leaving Jason to stumble upon their bodies. Thus, we accord little
weight to Brinkman’s post-arrest expressions of remorse. See State v. Davis, 139
Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 113, quoting State v. Hoffner,
102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 119 (“ ‘Retrospective
remorse’ is entitled to little weight”).
{¶ 128} Yet Brinkman’s guilty pleas, as well as his statements to the panel
in which he accepted responsibility for the murders and said that the death penalty
was the only way to achieve justice in this case, deserve significant weight in
mitigation. Combined, those actions demonstrate that Brinkman ultimately
acknowledged his culpability for the murders. See Montgomery, 148 Ohio St.3d
347, 2016-Ohio-5487, 71 N.E.3d 180, at ¶ 185.
{¶ 129} Brinkman’s alcohol and drug use were not related to the offenses
in this case, so we give minimal weight to evidence of Brinkman’s substance-abuse
disorders. Likewise, Brinkman’s medical issues—diabetes being the primary
concern—are entitled to little weight because there was no evidence that
Brinkman’s conduct directly resulted from those conditions. Brinkman admitted
that he had properly fed himself during the afternoon on the date of the offenses.
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{¶ 130} The remaining factors in R.C. 2929.04(B) do not assist Brinkman.
The Johns did not induce or facilitate the murders and there was no evidence that
Brinkman had been under duress, coercion, or strong provocation. Brinkman was
45 years old when he committed these offenses, so the mitigation factor of youth
does not apply. He was the sole offender, so he is not entitled to mitigation based
on his degree of participation. Brinkman has a prior criminal history, having spent
time in prison for other theft-related offenses. Although he had some mental-health
conditions, there is no indication that he lacked the capacity to appreciate the
criminality of his conduct or to conform his conduct to the law. And the nature and
circumstances of the aggravated murders offer absolutely nothing in mitigation.
{¶ 131} Although we find that Brinkman’s mitigating evidence is entitled
to some weight, we nevertheless conclude that the aggravating circumstances
outweigh the mitigating factors beyond a reasonable doubt as to each aggravated
murder. Brinkman’s decision to shoot Gene multiple times and to subject Bobbi to
multiple forms of violence, including beating her on the head with Gene’s gun and
smothering her, outweighs his mitigation.
D. Proportionality
{¶ 132} We further conclude that with respect to the aggravated murder of
each victim, the death penalty is both appropriate and proportionate when compared
with other capital cases involving a course of conduct under R.C. 2929.04(A)(5).
See, e.g., State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554,
¶ 1, 229 (two murders); State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827
N.E.2d 285, ¶ 120 (two murders). The death penalty is also appropriate and
proportionate here when compared with capital cases involving aggravated murders
committed during an aggravated burglary. See, e.g., State v. Davie, 80 Ohio St.3d
311, 334-335, 686 N.E.2d 245 (1997).
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January Term, 2022
VII. CONCLUSION
{¶ 133} We affirm Brinkman’s convictions and death sentences. But we
reverse the trial court’s judgment imposing postrelease control on Counts 3, 4,
and 5, and we remand Brinkman’s case to the trial court with instructions for it to
vacate postrelease control as to those counts.
Judgment affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and KENNEDY, FISCHER, DONNELLY, and STEWART, JJ.,
concur.
BRUNNER, J., concurs, with an opinion.
_________________
BRUNNER, J., concurring.
{¶ 134} I agree with the majority that appellant George Brinkman’s
convictions and sentences should be affirmed. I write separately to address
Brinkman’s fourth proposition of law, which presents the issue whether the trial
court erred when the presiding judge of the three-judge panel determined the
admissibility of evidence during the plea hearing without the contemporaneous
participation of the rest of the panel. Statutory law and caselaw requires that when
a defendant who is charged with an offense punishable by death pleads guilty to
that offense, decisions on the admissibility of evidence, even at the defendant’s plea
hearing, must be made by all three judges on the panel.
{¶ 135} Because Brinkman was charged with two counts of aggravated
murder with death specifications, a three-judge panel was convened in his case
pursuant to R.C. 2945.06. Brinkman waived his right to a jury trial and entered
guilty pleas to the charges against him. At the plea hearing, the panel heard
testimony from four witnesses and received written stipulated facts and exhibits.
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At the end of the hearing, however, Brinkman’s counsel objected to the admission
of 13 photographs of the victims.
{¶ 136} At that point, the presiding judge released the other two judges on
the panel, stating as follows:
[T]he case is considered complete at this point for purposes
of the panel to recess and deliberate, so I will ask my colleagues to
go ahead and recess for that purpose and I will join them in just a
moment once I have determined which exhibits I will be bringing
back with me to engage in our deliberations.
The presiding judge proceeded on her own to hear arguments and issue a ruling on
the admissibility of the photographs. As noted by the majority, the presiding judge
overruled the defense’s objections to 12 of the photographs but sustained its
objection to one autopsy photograph. The presiding judge then deliberated with the
other two judges, and the panel found Brinkman guilty on all counts and
specifications in the indictment.
{¶ 137} The procedure followed by the trial court in this jury-waived death-
penalty case that was heard by a panel of three judges violated R.C. 2945.06, which
provides:
The judges or a majority of them may decide all questions of
fact and law arising upon the trial; however the accused shall not be
found guilty or not guilty of any offense unless the judges
unanimously find the accused guilty or not guilty. If the accused
pleads guilty of aggravated murder, a court composed of three
judges shall examine the witnesses, determine whether the accused
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January Term, 2022
is guilty of aggravated murder or any other offense, and pronounce
sentence accordingly.
{¶ 138} The first sentence of the above-quoted passage is composed of two
independent clauses and is not directly applicable here because it addresses
questions of fact and law “arising upon the trial.” Id. Here, Brinkman pleaded
guilty to all the charges against him. The trial court therefore proceeded under the
second sentence of the passage, which is silent on how decisions concerning the
admissibility of evidence are to be made. Nonetheless, when the second sentence
is read with the first, it is clear that the first sentence informs the meaning of the
second sentence.
{¶ 139} The first independent clause of the first sentence provides that
decisions on “questions of law and fact”—which I believe includes questions
regarding the admissibility of evidence—shall be decided by “[t]he judges or a
majority of them.” Id. That clause therefore makes clear that decisions on
questions of law and fact in a bench trial in a capital case must be made by a vote
of the entire panel—by either a unanimous decision of “the judges” or a two-to-one
decision by a “majority of them.” Id. The second independent clause is an
exception to that general rule: the question whether the defendant is guilty or not
guilty must be unanimous. A split decision is not permitted on the ultimate question
of guilt.
{¶ 140} But when a defendant pleads guilty under R.C. 2945.06, the second
sentence of the above-quoted passage requires the panel to decide the issue of guilt
in the same manner as that used in a bench trial: the panel must “determine whether
the accused is guilty of aggravated murder or any other offense.” Id. The court’s
reaching that decision, whether following a trial or a guilty plea, requires the
consideration of evidence, which turns on questions of law and fact. This rule does
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not parse whether the finding as to the defendant’s guilt is reached by a jury or by
the trial court.
{¶ 141} Given this and the gravity of the ultimate potential penalty, a fair
reading of R.C. 2945.06 requires that all three judges on the panel vote on the
admissibility of evidence in a death-penalty bench proceeding, even one involving
a guilty plea, when determining the defendant’s guilt. Moreover, we have reiterated
that appellate review of a ruling on a motion to suppress evidence presents a mixed
question of fact and law and that a trial court’s findings of fact are to be given
deference when they are supported by competent, credible evidence. State v.
Harrison, 166 Ohio St.3d 479, 2021-Ohio-4465, 187 N.E.3d 510, ¶ 11 (lead
opinion), citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8, and State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).
{¶ 142} The vote on the admissibility of evidence may be unanimous or
split, but one of the judges on the panel may not rule on such matters of fact and
law alone. In a case involving a three-judge panel, the “trial court” is the three
judges composing the panel. If deference is to be given to the evidentiary
determinations of the trial court, it must indeed be to the three-judge panel.
{¶ 143} The trial court erred by ruling on the admissibility of the 13
challenged photographs through the decision of the presiding judge alone.
R.C. 2945.06 and our caselaw on the nature of evidentiary rulings required the
entire panel to participate in that decision.
{¶ 144} Notwithstanding this, I agree with the majority that this error does
not require reversal in this instance. Because Brinkman did not object to the failure
of the entire panel to rule on the admissibility of the photographs, we review the
issue only for plain error. I agree with the majority that “Brinkman has not
demonstrated a reasonable probability that the outcome of the proceeding would
have been different had the entire panel ruled on his evidentiary challenges.”
Majority opinion, ¶ 46.
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January Term, 2022
{¶ 145} For these reasons, I concur.
_________________
Kyle L. Stone, Stark County Prosecuting Attorney, Lisa A. Nemes, Chief
Appellate Prosecuting Attorney, and Vicki L. DeSantis, Assistant Prosecuting
Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kathryn L. Sandford and
Randall L. Porter, Assistant Public Defenders, for appellant.
_________________
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