Brookins v. State

879 S.E.2d 466, 315 Ga. 86

• Court: Supreme Court of Georgia
• Decided: October 4, 2022
• Docket: S22P0556
• Status: Published

Opinion

315 Ga. 86 FINAL COPY

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

murders. For the reasons set forth below, we affirm Brookins’s

1 At 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. 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 Unified Appeal Procedure (“UAP”) Rule IV (A) (3)), overruled on other grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (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 order denying Brookins’s supplemental motion for a new trial or, alternatively, for reconsideration of the order denying the motion for a new

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 general, 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

inmates, referring to Ms. Brookins, that he was going to “kill that

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.

3 We 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 snitchin’ b***h,” and he told a third inmate that the best thing the

county solicitor general 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 general 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 cell phone 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. Brookins’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 four to

six 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.

The State presented further rebuttal testimony from the

20 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

remote control for a new television, acting as the “banker” in

21 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

lobe,” and could not be “brain fluid.”

22 (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

was “mentally retarded” or “mentally ill.” See Jackson v. Virginia,

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 (25) (b) n.9 (860 SE2d 746) (2021) (plurality opinion), 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 (“[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.” (Nahmias, P. J., concurring specially)). 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 (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.”). 23 443 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 Rule 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.

The record shows that throughout Brookins’s trial the sheriff

of Baldwin County was responsible, at least ultimately, for

24 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

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

5 We 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 (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

bailiff.” (emphasis supplied)).

3. Brookins argues that the trial court impermissibly allowed

26 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

State asked its firearms expert about the bulletproof vests typically

worn by police officers, and the expert explained that an “AK or

6 It is unclear from the record whether the assault rifle was visible to the

jury. 27 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

motion [for a mistrial] because the evidence was admissible as part

of the res gestae of the murder, and was also relevant to the

28 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

to witnesses, and closing argument impermissibly conflated the

issue of “mental illness,” which was part of a verdict that he was

29 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

not have mental capacity to distinguish between right and wrong in

relation to [an otherwise-criminal act].” OCGA § 16-3-2 (emphasis

30 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’

statements and questions that suggest that a defendant must fit the

definition of “insanity” in order to be found “mentally ill” are

31 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 “[didn’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

statements and questions by the State, such as those incorporating

the phrases “criminal responsibility” and “overmastering of the

32 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 SEd 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 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)

33 (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 v. State, 266 Ga. 574, 576 (468 SE2d 769) (1996)); 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 (1) (b) & n.19 (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 (2) 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 (2) & n.20 (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 v. State, 303 Ga. App. 517, 521 (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 (1) & n.20 (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 (2) & n.10 (705 SE2d 906) (2011) (citing Shirley v. State, 259 Ga. App. 503, 505 (578 SE2d 163) (2003)); Leverette, 303 Ga. App. at 852 (2) & n.15 (citing Abernathy v. State, 299 Ga. App. 897, 902 (2) (685 SE2d 734) (2009)); Dixon, 303 Ga. App. at 520-521 (2) & n.17 (citing Shirley, 259 Ga. App. at 505); Abernathy, 299 Ga. App. at 902 (2) & n.19 (citing Shirley, 259 Ga. App. at 505); Adams v. State, 284 Ga. App. 534, 541 (3) & n.42 (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 (1) & n.4 (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 (1) (b) & n.6 (574 SE2d 646) (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)), disapproved on other grounds by State v. Burns, 306 Ga.

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.”).

6. Brookins argues that it was error for the trial court to permit

the State to present evidence against a possible finding of

117, 124 (2) n.3 (829 SE2d 367) (2019); Hite, 208 Ga. App. at 269-270 (1)-(2) (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 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

health testimony only in rebuttal to the defense’s own use of such

testimony is premised on whether the State’s expert has evaluated

36 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,

pretermitting Brookins’s failure to raise a related objection at trial,

we conclude that there is no error here.

37 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 “mentally retarded” 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, 7 (I) (137 SCt 1039, 197 LE2d 416) (2017)

(describing the “generally accepted, uncontroversial intellectual-

disability diagnostic definition” and noting that the definition

“identifies three core elements: (1) intellectual-functioning deficits

38 (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

not hold a license as a psychologist but did hold a certificate from

the State Department of Education in school psychology, did not

39 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 (renumbered in 2011 as OCGA § 24-7-707, repealed

by Ga. L. 2022, pp. 201, 202, § 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

what Brookins’s IQ was. The psychiatrist was qualified as an expert

40 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.

Smith 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

[Brookins] did his best and was not malingering” on his IQ test.

41 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. Smith 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

evaluations.” Pretermitting the arguable question of whether the

42 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, 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. of Alabama Dept. of

Corrections, 723 F3d 1308, 1316 (II) (A) (11th Cir. 2013) (rejecting

43 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” (emphasis in original)). See also

Hamilton v. State, 309 Ga. 1, 7-8 (3) (843 SE2d 840) (2020) (applying

Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982), which governed

expert testimony in criminal cases prior to July 1, 2022); OCGA §

24-7-702 (as amended by Ga. L. 2022, p. 201, § 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

not after the State was permitted to reformulate its questions after

44 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

who had originally interpreted the MRI insisting that there was no

45 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

his wife; that evidence had arisen about his wife being involved in

46 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.”

The State responded that it was seeking to show that Dr. Sachy had

47 “a bias and a leaning which [was] 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.”

Although this is a close question, we hold that the trial court

48 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

23) (2003) (holding that “a witness cannot be impeached by instances

49 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.”).

12. Brookins claims that the State possessed investigative

50 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 LE 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

resulting from official investigations of him in connection with

51 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 [was] 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 Schofield, 279 Ga. at 852

(2). 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.” (emphasis omitted)). 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

57 sentence.”).

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.” (emphasis in original).

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

58 penalty. See Ellington v. State, 292 Ga. 109, 116 (3) (a) (735 SE2d

736) (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 706

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 706 (11) (a) n.3.

20. Brookins complains that a number of witnesses were

59 allowed to testify beyond what is allowed by the ordinary rules of

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 Brookins’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

60 witness” but “kn[e]w, being her best friend,” that once “he took [his

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 general testified about

her own experience with the mother of Brookins’s son. While some

of the incidental aspects of the solicitor general’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

61 memories, to provide a history of Brookins’s many probation

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

62 here are unpersuasive, as “reliable evidence of bad character . . . is

admissible in the sentencing phase of a death penalty trial.” 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

[the] case was ‘one of the most vile and brutal crimes to come about

in [the] county in recent memory’” (emphasis in original)). While we

have condemned “the injection into the argument of extrinsic and

64 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 [was] led to believe that

responsibility for determining the appropriateness of a death

sentence rest[ed] not with the jury but with the appellate court”).

65 (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

the sheer fact of the murder conviction in the case).

66 (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,” Carruthers v. State,

272 Ga. 306, 310 (2) (528 SE2d 217) (2000), overruled on other

grounds by Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863)

67 (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

probability led to the jury’s decision to impose a death sentence.”).

68 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

Giles was outrageously or wantonly vile, horrible, or inhuman in

69 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 Rule 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

West v. State, 252 Ga. 156, 161-162 (Appendix) (313 SE2d 67) (1984)

70 (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

murder involving the section (b) (7) statutory aggravating

71 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 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));

72 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).

Decided October 4, 2022 — Reconsideration denied November 2,

2022.

Murder. Baldwin Superior Court. Before Judge Wingfield.

Josh D. Moore, Thea A. Delage, Michael B. Admirand,

Katherine L. Moss, for appellant.

T. Wright Barksdale III, District Attorney, Sydney E. Segers,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Sabrina D. Graham, Senior Assistant Attorneys General,

Matthew B. Crowder, Assistant Attorney General, for appellee.