Summary:

Rhode and Daniel Lucas were ransacking the Moss home in search of valuables when 11 year old Bryan Moss saw them through a front window and entered through a back door armed with a baseball bat. They wrestled Bryan to a chair and Lucas shot him in the shoulder.

When they heard 15 year old Kristin approaching the house, Rhode forced her to a chair and shot her twice with a pistol. Rhode then ambushed Steven Moss when he arrived home, shooting him with the same pistol. Lucas later shot each of the victims again to make sure they were dead.

Accomplice Lucas was also convicted of murder and sentenced to death in a separate trial and remains on death row.

Citations:

Rhode v. State, 274 Ga. 377, 552 S.E.2d 855 (Ga. 2001). (Direct Appeal)
Rhode v. Hall, 582 F.3d 1273 (11th Cir. 2009). (Habeas)

Final/Special Meal:

Rhode did not request a final meal and received the standard meal tray being served at the prison. His final meal consisted of a chili dog, tater tots, carrots, cole slaw, a slice of cake, and fruit punch.

Final Words:

None.

Georgia Department of Corrections

INMATE: RHODE, BRANDON J
GDC# 1017103
PHYSICAL DESCRIPTION
YOB: 07/1979
RACE: WHITE
GENDER: MALE
HEIGHT: 5'11''
WEIGHT: 165
EYE COLOR: BROWN
HAIR COLOR: BLACK
SENTENCING DATE: 02/00

MAJOR OFFENSE: MURDER
MOST RECENT INSTITUTION: GA DIAG & CLASS PRIS-PERM
KNOWN ALIASES: A.K.A. RHODE,BRANDON JOSEPH

STATE OF GEORGIA - CURRENT SENTENCES
CASE NO: 439113
OFFENSE: MURDER
CONVICTION COUNTY: JONES COUNTY
CRIME COMMIT DATE: 04/23/1998
SENTENCE LENGTH: DEATH

CASE NO: 439113
OFFENSE: BURGLARY
CONVICTION COUNTY: JONES COUNTY
CRIME COMMIT DATE: 04/23/1998
SENTENCE LENGTH: 20 YEARS, 0 MONTHS, 0 DAYS

CASE NO: 439113
OFFENSE: BURGLARY
CONVICTION COUNTY: JONES COUNTY
CRIME COMMIT DATE: 04/23/1998
SENTENCE LENGTH: 20 YEARS, 0 MONTHS, 0 DAYS

CASE NO: 439113
OFFENSE: KIDNAPPING
CONVICTION COUNTY: JONES COUNTY
CRIME COMMIT DATE: 04/23/1998
SENTENCE LENGTH: LIFE

Georgia Attorney General

Thurbert E. Baker
Georgia Attorney General
PRESS ADVISORY
Tuesday, September 7, 2010

Execution Scheduled For Killer Convicted Of Brutal Triple Homicide In Jones County Georgia Attorney General Thurbert E. Baker offers the following information in the case against Brandon Joseph Rhode, who is scheduled to be executed at 7:00pm on September 21, 2010 for the brutal murders of Steven Moss and Moss's two children, daughter Kristin, aged 15, and son Bryan, aged 11.

Scheduled Execution

On September 7, 2010, the Superior Court of Jones County filed an order, setting the seven-day window in which the execution of Brandon Joseph Rhode may occur to begin at noon, September 21, 2010, and ending seven days later at noon on September 28, 2010. The Commissioner of the Department of Corrections then set the specific date and time for the execution as 7:00pm on September 21, 2010. Rhode has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.

Rhode’s Crimes (1998)

The Georgia Supreme Court summarized the facts of the case as follows:

The evidence presented at trial suggested the following account of the crimes. Rhode and his co-perpetrator, Daniel Lucas, burglarized the home of Steven and Gerri Ann Moss on April 23, 1998, fled the scene when Rhode discovered an alarm system, and returned later that day to burglarize the home again. While Rhode and Lucas were ransacking the home searching for valuables, 11-year-old Bryan Moss arrived, observed Rhode and Lucas through a front window, and entered through a back door, armed with a baseball bat. Rhode and Lucas subdued Bryan at gunpoint, sat him in a chair, and began discussing what to do with him. Lucas turned and fired at the boy, inflicting a non-fatal shoulder wound. As Kristin Moss was approaching the house, Lucas took Bryan into a back bedroom. Rhode met Kristin as she arrived, sat her in a chair, and shot her twice with a .357 caliber pistol. Lucas repeatedly shot Bryan with a .25 caliber pistol. Rhode later shot Steven Moss with the .357 caliber pistol when Steven arrived. Finally, Lucas obtained a .22 caliber pistol from Rhode’s automobile and shot Bryan and Kristin again.

Chad Derrick Jackson, Rhode’s roommate, testified that he observed Rhode and Lucas handing rifles and other items out of Jackson and Rhode’s bedroom window and loading them into Rhode’s automobile on the evening of the crimes. Jackson further testified that Rhode and Lucas admitted to him the next day that Lucas first shot Bryan in the shoulder, that Lucas then shot Bryan while Rhode simultaneously shot Kristin, that Rhode next shot Steven Moss, and that lastly Lucas shot each victim to ensure their deaths.

Danny Ray Bell, who also lived in the same house as Rhode, testified that Rhode and Lucas spoke to him between the two burglaries and that Bell advised Rhode not to return to burglarize the same home. Bell testified that, at the time of this conversation, Rhode had a .357 caliber pistol in his waistband. According to Bell, when Rhode returned from the second burglary, Rhode said that he had "messed up big time" and needed to dispose of some weapons and other items. Rhode admitted to Bell that Lucas shot a young boy and that Rhode shot a girl and a man.

Several witnesses testified that they saw an automobile similar to Rhode’s at or near the victims’ home on the day of the murders. A search of Rhode’s automobile revealed damage to the front and rear bumpers and a spare tire in the trunk that showed signs of use. A photograph of the crime scene suggested a vehicle had backed into a gas tank at the victims’ home. Expert testimony disclosed that paint on a cement block at the victims’ home matched the paint on Rhode’s automobile, including two layers applied at the factory and a third layer likely applied later. Additional expert testimony indicated that a crime scene imprint could have been made by Rhode’s spare tire.

Rhode made a statement admitting he fired two times at Kristin with the .357 caliber pistol, and he led law enforcement officers to two locations where he and Lucas had secreted weapons and other items. Expert testimony matched the found .357 and .25 caliber pistols to bullets retrieved from the crime scene and the victims’ bodies.

Rhode v. State, 274 Ga. 377-378, 552 S.E.2d 855 (2001).

The Trial (1998-2000)

Rhode was indicted in the Superior Court of Jones County, Georgia on June 30, 1998 for three counts of malice murder, three counts of felony murder, two counts of burglary and one count of kidnapping with bodily injury. On February 25, 2000, following a jury trial, Rhode was convicted on all counts. The jury’s recommendation of a death sentence was returned on February 27, 2000.

The Direct Appeal (2001-2002)

The Georgia Supreme Court affirmed Rhode’s convictions and sentences on October 1, 2001. Rhodev. State, 274 Ga. 377, 552 S.E.2d 855 (2001). Rhode filed a petition for writ of certiorari in the United States Supreme Court, which was denied on June 17, 2002. Rhode v. Georgia, 536 U.S. 925 (2002).

State Habeas Corpus Proceedings (2003-2007)

Rhode, represented by Brian Kammer, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on April 3, 2003. Rhode filed an amended petition for writ of habeas corpus on August 30, 2004. An evidentiary hearing was held on March 31, 2005. On March 16, 2006, the state habeas corpus court entered an order denying Rhode state habeas relief. Rhode’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on April 24, 2007.

Federal Habeas Corpus Proceedings (2007-2009)

Rhode, represented by Brian Kammer, filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia on June 25, 2007. On September 9, 2008, the district court denied Rhode federal habeas corpus relief. The district court denied a motion to alter and amend judgment on November 5, 2008. The district court granted Rhode a certificate of appealability on January 20, 2009.

11th Circuit Court of Appeals (2009)

The case was orally argued before the Eleventh Circuit on September 10, 2009. On September 17, 2009, the Eleventh Circuit issued an opinion which denied relief. Rhodev. Hall, 582 F.3d. 1273 (11th Cir. 2009). Rhode filed a petition for panel rehearing, which was denied November 17, 2009.

United States Supreme Court (2010)

Rhode filed a petition for writ of certiorari in the United States Supreme Court, which was denied June 7, 2010. Rhode v. Hall, 130 S.Ct. 3399 (2010). Rhode then filed a petition for rehearing in the United States Supreme Court, which was denied on August 16, 2010. Rhode v. Hall, 2010 U.S. LEXIS 5635 (Case No. 09-10597).

Georgia executes inmate who tried suicide

Man convicted in 1998 Jones County triple murder case is denied final appeal

The Augusta Chronicle

Associated Press - Monday, Sept. 27, 2010

JACKSON, Ga. --- A death row inmate who tried to kill himself last week by slashing his arms and throat with a razor blade was executed Monday night, amid heightened security, for the 1998 murders of a trucking company owner and his two children.

Brandon Joseph Rhode, 31, was put to death by lethal injection at the state prison in Jackson. He was pronounced dead by authorities at 10:16 p.m. Rhode declined to speak any last words or have a final prayer.

He was convicted in 2000 of the killings of Steven Moss, 37, his son Bryan, 11, and daughter Kristin, 15, during a burglary of their Jones County home. His co-conspirator, Daniel Lucas, was sentenced to death in a separate trial and remains on death row.

Rhode's execution had been set for 7 p.m. His attorneys applied Monday afternoon to the U.S. Supreme Court for a stay of execution. The court rejected the appeals later that night. Rhode had previously been scheduled to be put to death Sept. 21, but the Georgia Supreme Court postponed the execution twice after he was rushed to the hospital that day after a suicide attempt. Rhode was stabilized at a hospital and placed in a restraining chair to prevent him from pulling out the sutures on his neck or doing any other harm to himself, state attorneys said.

Defense attorney Brian Kammer countered that Rhode was put in a "torture chair" and subjected to cruel and unusual punishment. Kammer urged the Georgia Supreme Court on Monday to push back the execution again so experts could evaluate whether Rhode was mentally competent to be executed, or understood why he was being punished. He said Rhode lost half his blood Sept. 21 when he cut himself, went into shock and could have suffered brain damage.

The inmate's supporters filed a separate motion urging the execution be delayed for three weeks so officials could determine how Rhode got the razor blades he used to slash himself. A federal judge rejected the appeal but ordered state prisons officials to take more security precautions to make sure he did not harm himself.

Rhode and Lucas were ransacking the Moss home in search of valuables in April 1998 when Bryan Moss saw them through a front window and entered through a back door armed with a baseball bat, prosecutors said. They said they wrestled Bryan to a chair and Lucas shot him in the shoulder. When the intruders heard Kristin approaching the house, Rhode forced her to a chair and shot her twice with a pistol, according to court records. Rhode ambushed Steven Moss when he arrived home, shooting him with the same pistol. Lucas later shot each of the victims again to make sure they were dead, according to the records.

Rhode appealed the case several times, arguing that his trial attorneys failed to present enough evidence to persuade the jury to spare his life. Kammer argued more recently that his client should be granted clemency because doctors discovered he suffered from organic brain damage and a fetal alcohol disorder. Each time, though, the appeals were denied.

Georgia execution delayed after suicide attempt

By Greg Bluestein - Associated Press

September 21, 2010

ATLANTA — The Georgia Supreme Court delayed the execution Tuesday of a convicted killer who attempted suicide hours before he was to be put to death by injection. Brandon Joseph Rhode, 31, tried to slit his wrists and his throat, according to his attorneys who want to halt the execution with a new mental competency challenge.

Rhode's attorney Brian Kammer said the attempted suicide proves Rhode was "incompetent" and executing him violates the Constitution's ban on cruel and unusual punishment. "He's utterly terrified and just hopeless," said Kammer. "He was very morose, frightened and subdued. This was a product of him just being in terror, of losing hope altogether."

Georgia prisons officials have rescheduled the execution for Friday.

Rhode was convicted in 2000 of the killings of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin during a burglary of their Jones County home. His co-conspirator, Daniel Lucas, was also sentenced to death in a separate trial and is on death row.

Suicide attempts on death row are rare, but have happened. In March, Ohio inmate Lawrence Reynolds overdosed on an antidepressant hours before he was to be transferred to the state's death chamber. He recovered in a hospital and was executed a week later.

In Texas, David Long was executed in December 1999 after overdosing on antidepressants authorities believe he hoarded in his death row cell. Long's attorneys sought to postpone the execution, but a judge refused a reprieve, saying that because Long previously was judged competent to be executed, there was a presumption of competency.

Rhode finally executed

By Debbie Lurie-Smith - Jones County News

September 27, 2010

Although unwillingly, Brandon Joseph Rhode ultimately took responsibility Monday night for the murders of three members of a Jones County family. Rhode was pronounced dead at the Georgia Diagnostic Prison in Jackson at 10:16 p.m. Sept. 27. The execution was scheduled to occur at 7 p.m., but a last minute appeal to the U.S. Supreme Court delayed Rhode’s death.

The Monday execution date was the fourth time it had been scheduled since the original order set the time for Sept. 21, 7 p.m. Rhode was able to get his hands on a razor the night before he was to be executed and made cuts in his neck and arms that were severe enough to cause him to be hospitalized, and the date moved to 9 a.m. Friday. That time was later moved to 7 p.m. the same day, and late that afternoon, it was rescheduled for this past Monday.

Jones County was represented at the execution by assistant district attorneys Gregory Bushway and Keagan Goodrich. Bushway prosecuted the case with District Attorney Fred Bright, who was not able to be at the prison Monday.

Georgia executes inmate who had attempted suicide

By Greg Bluestein - Atlanta Journal Constitution

September 27, 2010

JACKSON, Ga. — A Georgia prisoner who tried to kill himself last week by slashing his arms and throat with a razor blade was executed Monday night amid heightened security for the 1998 murders of a trucking company owner and his two children.

Brandon Joseph Rhode, 31, was put to death by injection at the state prison in Jackson. He was pronounced dead at 10:16 p.m. Rhode declined to speak any last words or have a final prayer.

He was convicted in 2000 of killing Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin during a burglary of their Jones County home in central Georgia. His coconspirator, Daniel Lucas, was also sentenced to death in a separate trial and remains on death row.

Rhode's execution had been set for 7 p.m. but was pushed back several hours as corrections officials waited for the U.S. Supreme Court to decide on his plea for a stay of execution. The court rejected appeals later that night. Medics then tried for about 30 minutes to find a vein to inject the three-drug concoction.

The prisoner's eyes darted around the room before the lethal mixture began coursing through his veins. Within minutes he was staring blankly at the ceiling of the death chamber. Moments before Rhode was pronounced dead he turned his head, exposing a bandage over the part of his neck he slashed. It took 14 minutes for the lethal dose to kill him.

Rhode had initially been scheduled to be put to death Sept. 21, but the Georgia Supreme Court postponed the execution after Rhode was rushed to the hospital that day following a suicide attempt.

Rhode was stabilized at a local hospital and placed in a restraining chair to prevent him from removing the sutures from his neck or doing any other harm to himself, state attorneys said. Defense attorney Brian Kammer countered that Rhode was put in a "torture chair" and subjected to cruel and unusual punishment.

"He has been subjected to the surreal and incomprehensible: Heroic measures taken to stabilize his life by the prison staff that would then execute him," Kammer said in one court filing. Kammer urged the Georgia Supreme Court Monday to push back the execution again so experts could evaluate whether Rhode was mentally competent to be executed, or understood why he was being punished. He said Rhode lost half his blood Sept. 21 when he cut himself, went into shock and could have suffered brain damage. "The threat of execution has pushed Mr. Rhode's limited coping skills to the breaking point," spurring him to slash himself with blades he hid from guards while under a blanket, he said in the filing.

Rhode and Lucas were ransacking the Moss' home in search of valuables in April 1998 when Bryan Moss saw them through a front window, and entered through a back door armed with a baseball bat, prosecutors said. They said Moss and his son and daughter were shot to death. Lucas later shot each of the victims again to make sure they were dead, according to the records.

Rhode appealed the case several times, arguing that his trial attorneys failed to present enough evidence to persuade the jury to spare his life. Kammer argued more recently that his client should be granted clemency because doctors discovered he suffered from organic brain damage and a fetal alcohol disorder.

Brandon Joseph Rhode

ProDeathPenalty.com

Brandon Joseph Rhode was sentenced to die for the murders of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin during their burglary of their Jones County home. His co-conspirator, Daniel Lucas, was also sentenced to death in a separate trial and he remains on death row."

Rhode and his co-perpetrator, Daniel Lucas, burglarized the home of Steven and Gerri Ann Moss on April 23, 1998, fled the scene when Rhode discovered an alarm system, and returned later that day to burglarize the home again.

While Rhode and Lucas were ransacking the home searching for valuables, eleven-year-old Bryan Moss arrived, observed Rhode and Lucas through a front window, and entered through a back door, armed with a baseball bat. Rhode and Lucas subdued Bryan at gunpoint, sat him in a chair, and began discussing what to do with him. Lucas turned and fired at the boy, inflicting a non-fatal shoulder wound.

As Kristin Moss was approaching the house, Lucas took Bryan into a back bedroom. Rhode met Kristin as she arrived, sat her in a chair, and shot her twice with a .357 caliber pistol. Lucas repeatedly shot Bryan in the face with a .25 caliber pistol. Rhode later shot Steven Moss with the .357 caliber pistol when Steven arrived. Finally, Lucas obtained a .22 caliber pistol from Rhode's automobile and shot Bryan and Kristin again.

Chad Derrick Jackson, Rhode's roommate, testified that he observed Rhode and Lucas handing rifles and other items out of Jackson and Rhode's bedroom window and loading them into Rhode's automobile on the evening of the crimes. Jackson further testified that Rhode and Lucas admitted to him the next day that Lucas first shot Bryan in the shoulder, that Lucas then shot Bryan while Rhode simultaneously shot Kristin, that Rhode next shot Steven Moss, and that lastly Lucas shot each victim to ensure their deaths.

Danny Ray Bell, who also lived in the same house as Rhode, testified that Rhode and Lucas spoke to him between the two burglaries and that Bell advised Rhode not to return to burglarize the same home. Bell testified that, at the time of this conversation, Rhode had a .357 caliber pistol in his waistband. According to Bell, when Rhode returned from the second burglary, Rhode said that he had “messed up big time” and needed to dispose of some weapons and other items. Rhode admitted to Bell that Lucas shot a young boy and that Rhode shot a girl and a man.

Several witnesses testified that they saw an automobile similar to Rhode's at or near the victims' home on the day of the murders. A search of Rhode's automobile revealed damage to the front and rear bumpers and a spare tire in the trunk that showed signs of use. A photograph of the crime scene suggested a vehicle had backed into a gas tank at the victims' home.

Expert testimony disclosed that paint on a cement block at the victims' home matched the paint on Rhode's automobile, including two layers applied at the factory and a third layer likely applied later. Additional expert testimony indicated that a crime scene imprint could have been made by Rhode's spare tire.

Rhode made a statement admitting he fired two times at Kristin with the .357 caliber pistol, and he led law enforcement officers to two locations where he and Lucas had secreted weapons and other items. Expert testimony matched the found .357 and .25 caliber pistols to bullets retrieved from the crime scene and the victims' bodies.

UPDATE:

Because Rhode attempted to commit suicide just hours before his scheduled execution on Wednesday, his execution was delayed until Friday. As of Sept 23, requests for an additional stay have been denied.

UPDATE:

On Friday, Brandon Rhode received another stay from the Georgia Supreme Court so that his attorneys could try to prove that he is not competent to be executed. This time the stay is extended to Monday at 4:00 pm.

Brandon Joseph Rhode

Brandon Joseph Rhode is scheduled to be executed at 7:00 p.m. tonight. Mr. Rhode was convicted of the murder of Bryan, Steven, and Kristin Moss during a robbery on April 23, 1998. ( 11 year old Bryan confronted the burglars with a baseball bat.) Daniel Anthony Lucas also participated in the crime, and has been sentenced to die.

Ocmulgee Circuit District Attorney Fred Bright prosecuted the case. Because of the brutality of the crime, a plea bargain was not offered. Mr. Bright wanted the death penalty. “I vividly remember in the guilt-innocence portion of the trial, when the jury had been out five hours, the attorneys asked me about a manslaughter plea. My response was ‘read my lips, I’m not even interested in offering life without parole’.”

The case went through the required series of appeals and reviews. Lawyers claimed that other lawyers did not do a good job, and that it was really Mr. Lucas who did the killing. There seems to be little doubt that Mr. Rhode was at the crime scene at the time of the murders. On Sept. 17, 2009 the verdict was issued. “Brandon Rhode, a Georgia death row inmate, appeals from the district court’s denial of his federal habeas corpus petition. The court granted a certificate of appealability (“COA”) as to Rhode’s claim of ineffective penalty phase investigation and presentation of mitigation evidence by his trial counsel. For the reasons that follow, we affirm the district court’s denial of Rhode’s petition.”

The mitigating circumstances deal largely with Mr. Rhode’s mental capacity. Amnesty International tells the story. Brandon Rhode was born in Mississippi to a young mother, who as a 15-year-old was not even aware she was pregnant for the first five months. During this time she consumed alcohol and drugs. Brandon Rhode has been diagnosed as suffering from organic brain damage, and in 2010, using modern methods of testing, experts concluded that he “definitely suffers from a Fetal Alcohol Spectrum Disorder” (FASD), and that his development was significantly delayed as a result of his exposure to alcohol as a foetus. Dr Richard Adler has said that “what we now know for certain in 2010… is that the brain of a healthy child continues to grow and develop and mature into the early 20s.

During that time, the executive functions of the brain – impulse control, judgment, planning, appreciation of consequences, empathy, ability to course-correct – are the last areas of brain functioning to develop. This is why adolescents – even 18 year old teenagers like Brandon Rhode was in 1998 – are definitely impaired in these areas of functioning as compared to adults. Furthermore, the characteristic deficits associated with FASD only exacerbate the impairments associated with adolescent brain immaturity… In effect, Brandon was functioning… at a considerably younger level than his chronological age at the time of the subject crimes”. Brandon Rhode began drinking alcohol at the age of 11, and by the age of 13 was abusing alcohol and drugs regularly. He was hospitalized at the age of 13 after a suicide attempt. At 15, he dropped out of school and was sent by his mother to live with his biological father who was a drug addict and alcoholic. The teenager’s own substance abuse escalated and he began to burgle houses in the pursuit of money to buy alcohol and drugs”

As this is written, Brandon Rhode is held in restraints. He attempted suicide before his scheduled execution Tuesday night. As the fishwrapper tells the story “Rhode tried to kill himself by slitting the side of his neck and both arms. By the time he was discovered, Rhode was unconscious and had lost half the blood in his body; he was revived at the hospital in nearby Griffin…Rhode had concealed the razor blade he used to cut his neck and arms while lying under a blanket, said Joe Drolet, a lawyer for the state attorney general’s office. He was being observed by guards, but they could not see what was happening under the blanket and took action when they saw blood.”

There are reports that the razor was given to Mr. Rhode by a prison guard. This is denied by the officials. “There’s not a pattern of recklessly handing out razors to suicidal death row inmates,” They do not deny that Mr. Rhode was being observed, by guards, while he cut himself under a blanket.

The state is still planning to poison Brandon Rhode tonight at 7:00 p.m. Until that time , “Two guards — and not the guards who were assigned to watch Rhode at the time he tried to kill himself — must be assigned continuously to observe Rhode.” There have been other suicides on death row recently. On January 1, 2010, Leeland Mark Braley was found hanging in his cell. And then there is the case of Timothy Pruitt. Timothy Woodrow Pruitt tried to hang himself on November 19. He died on December 6. ( PG is puzzled why it would take 17 days for a botched suicide to have the desired effect). When announcing his demise, the Department of Corrections referred to an “alleged suicide attempt” that is under investigation.

On January 8 , “Georgia’s top Department of Corrections official has now acknowledged that one of two recent reported suicides on Georgia’s death row may not have been a suicide.” And now, there are reports of guards giving an unstable inmate razor blades, on the eve of his execution. Pictures are from the Georgia Department of Corrections and ” The Special Collections and Archives,Georgia State University Library”.

UPDATE: The Georgia Supreme Court has granted another stay of execution. The procedure is now scheduled for Monday, September 27, at 4:00 p.m..

UPDATE2: Brandon Rhode died Monday night, September 27. He did not make a final statement.

Habeas' hearing held

Debbie Lurie-Smith - The Jones County News

04/07/05

S01P0708.

(274 Ga. 377)
(552 SE2d 855)
(2001)

HINES, Justice.

Murder. Jones Superior Court. Before Judge Wingfield.

A jury found Brandon Joseph Rhode guilty of three counts of malice murder, three counts of felony murder, two counts of burglary, and one count of kidnapping with bodily injury. 1 The jury found beyond a reasonable doubt that the murder of Bryan Moss was committed while Rhode was engaged in the murder of Kristin Moss, was committed while Rhode was engaged in a burglary, was committed while Rhode was engaged in a kidnapping with bodily injury, and was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. See OCGA 17-10-30 (b) (2) and (7). The jury found beyond a reasonable doubt that the murder of Kristin Moss was committed while Rhode was engaged in the murder of Steven Moss and while Rhode was engaged in a burglary. See OCGA 17-10-30 (b) (2). The jury found beyond a reasonable doubt that the murder of Steven Moss was committed while Rhode was engaged in the murder of Bryan Moss and while Rhode was engaged in a burglary. Id. The jury fixed the sentence for each murder at death. For the reasons set forth below, this Court affirms Rhode's convictions and sentences.

1. The evidence presented at trial suggested the following account of the crimes.

Rhode and his co-perpetrator, Daniel Lucas, burglarized the home of Steven and Gerri Ann Moss on April 23, 1998, fled the scene when Rhode discovered an alarm system, and returned later that day to burglarize the home again.

While Rhode and Lucas were ransacking the home searching for valuables, 11-year-old Bryan Moss arrived, observed Rhode and Lucas through a front window, and entered through a back door, armed with a baseball bat.

Rhode and Lucas subdued Bryan at gunpoint, sat him in a chair, and began discussing what to do with him. Lucas turned and fired at the boy, inflicting a non-fatal shoulder wound.

As Kristin Moss was approaching the house, Lucas took Bryan into a back bedroom. Rhode met Kristin as she arrived, sat her in a chair, and shot her twice with a .357 caliber pistol. Lucas repeatedly shot Bryan with a .25 caliber pistol. Rhode later shot Steven Moss with the .357 caliber pistol when Steven arrived. Finally, Lucas obtained a .22 caliber pistol from Rhode's automobile and shot Bryan and Kristin again.

Chad Derrick Jackson, Rhode's roommate, testified that he observed Rhode and Lucas handing rifles and other items out of Jackson and Rhode's bedroom window and loading them into Rhode's automobile on the evening of the crimes.

Jackson further testified that Rhode and Lucas admitted to him the next day that Lucas first shot Bryan in the shoulder, that Lucas then shot Bryan while Rhode simultaneously shot Kristin, that Rhode next shot Steven Moss, and that lastly Lucas shot each victim to ensure their deaths.

Danny Ray Bell, who also lived in the same house as Rhode, testified that Rhode and Lucas spoke to him between the two burglaries and that Bell advised Rhode not to return to burglarize the same home. Bell testified that, at the time of this conversation, Rhode had a .357 caliber pistol in his waistband. According to Bell, when Rhode returned from the second burglary, Rhode said that he had "messed up big time" and needed to dispose of some weapons and other items. Rhode admitted to Bell that Lucas shot a young boy and that Rhode shot a girl and a man.

Several witnesses testified that they saw an automobile similar to Rhode's at or near the victims' home on the day of the murders. A search of Rhode's automobile revealed damage to the front and rear bumpers and a spare tire in the trunk that showed signs of use. A photograph of the crime scene suggested a vehicle had backed into a gas tank at the victims' home. Expert testimony disclosed that paint on a cement block at the victims' home matched the paint on Rhode's automobile, including two layers applied at the factory and a third layer likely applied later. Additional expert testimony indicated that a crime scene imprint could have been made by Rhode's spare tire.

Rhode made a statement admitting he fired two times at Kristin with the .357 caliber pistol, and he led law enforcement officers to two locations where he and Lucas had secreted weapons and other items. Expert testimony matched the found .357 and .25 caliber pistols to bullets retrieved from the crime scene and the victims' bodies.

Jury Selection

2. The trial court did not err by allowing a Harris County jury commissioner, who testified that she participated in revising the electronically-generated jury list, to certify the jury list nunc pro tunc. Jackson v. State, 76 Ga. 551, 565 (3) (1886); see also Pope v. State, 256 Ga. 195, 197 (1) (c) (345 SE2d 831) (1986) ("[W]e 'do not find here such disregard of the essential and substantial provisions of the statute as would vitiate the arrays.' ") (quoting Franklin v. State, 245 Ga. 141, 147 (1) (263 SE2d 666) (1980)), overruled on other grounds by Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999).

3. The process of qualifying jurors as to their views on the death penalty is not unconstitutional. DeYoung v. State, 268 Ga. 780, 790 (11) (493 SE2d 157) (1997).

4. Upon a review of the voir dire of prospective jurors in this case, particularly the portions highlighted by Rhode in this appeal, this Court concludes that the trial court did not abuse its discretion in limiting voir dire and that a thorough examination of each prospective juror, particularly of each prospective juror's death penalty views, was permitted. See Barnes v. State, 269 Ga. 345, 351-352 (10) (496 SE2d 674) (1998). The trial court properly sustained objections and gave cautionary directions to counsel when counsel's questions called for a prejudgment of the case or failed to set forth the entire context within which jurors would consider a death sentence, including any mitigating evidence presented and the charge of the trial court, and the voir dire permitted after each sustained objection or cautionary direction was more than adequate. See Thornton v. State, 264 Ga. 563, 572 (13) (a) (449 SE2d 98) (1994).

5. Rhode contends that the trial court erred by not excusing 14 specific prospective jurors based upon their death penalty views. The trial court did not err by failing to excuse sua sponte 12 contested prospective jurors who were not challenged for cause based upon their death penalty views. Childs v. State, 257 Ga. 243, 249 (7) (357 SE2d 48) (1987). Furthermore, one of the twelve prospective jurors was actually excused for reasons unrelated to his death penalty views.

This Court finds, as to the two contested prospective jurors who were challenged for cause, that the trial court did not abuse its discretion in determining that the jurors' views on capital punishment would not " 'prevent or substantially impair . . . [their] duties as [jurors] in accordance with [their] instructions and [their] oath.' " Greene v. State, 268 Ga. 47, 48 (485 SE2d 741) (1997) (quoting Wainwright v. Witt, 469 U. S. 412, 424 (II) (105 SC 844, 83 LE2d 841) (1985)); see also Waldrip v. State, 267 Ga. 739, 743-744 (8) (a) (482 SE2d 299) (1997) ("A prospective juror's inability to recite circumstances which might lead her [or him] to vote for a life sentence is not dispositive of her [or his] qualifications to serve as a juror.").

6. Rhode complains that three prospective jurors were erroneously excused for cause when they expressed an unwillingness or inability to consider a death sentence that was based on their understanding that Georgia law required execution by electrocution. A review of the record reveals that one of these prospective jurors was unwilling to consider a death sentence regardless of the method of imposition, and, furthermore, Rhode has waived his right to complain about that prospective juror by failing to object to the trial court's excusing her. Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992). Regarding the other two prospective jurors, Rhode correctly argues that jurors in Georgia death penalty trials play no role in determining the method by which a death sentence is carried out. However, where a prospective juror is unable or unwilling, for any reason, to consider one or more of the sentences authorized by law, that juror should be excused for cause upon motion by one of the parties. See Wainwright, 469 U. S. at 429 (III) ("[E]xcluding prospective capital sentencing jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias. . . ."); Zellmer v. State, 272 Ga. 735 (534 SE2d 802) (2000). Here, the unwavering biases of two of the prospective jurors against a death sentence, which arose both from personal knowledge and a preliminary charge about electrocution that had been requested by Rhode, rendered them unqualified. In fact, one of them was further unqualified because she was unwilling to consider a sentence of life with the possibility of parole. See Zellmer, 272 Ga. 735. The fact that the method of execution applicable in Rhode's case could be subject to change by the General Assembly or by court order is irrelevant, because it was the effect of the jurors' biases upon their deliberations that was at issue. Rhode's argument concerning the separation of governmental powers is also without merit.

7. Rhode complains that three prospective jurors were improperly disqualified based upon their unwillingness or inability to vote for the death penalty under any circumstances. Rhode raised no objection at trial regarding two of them, and the objection he raised regarding the third was withdrawn except as to the meritless contention that the trial court erred by allowing additional voir dire to clarify the juror's apparently contradictory responses. Accordingly, this claim has been waived. Earnest, 262 Ga. at 495 (1).

Rhode also complains that seven other prospective jurors were improperly disqualified when it appeared that their religious views would prevent them from considering a death sentence. This claim has also been waived because Rhode raised no objection to their disqualification other than a meritless challenge to the practice of qualifying jurors according to their death penalty views. Id.

Guilt/Innocence Phase

8. The trial court correctly denied Rhode's pre-trial motion to suppress certain non-testimonial evidence and statements that were obtained during and as a result of non-custodial interviews at his residence and the Jones County Sheriff's Office and later interviews after he was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Miranda warnings were not required to be given at any point before they actually were, because Rhode was not then under arrest or confronted with circumstances that would have led a reasonable person in his position to believe he or she was under arrest. Hightower v. State, 272 Ga. 42-43 (2) (526 SE2d 836) (2000).

Before Rhode gave his first formal statement and before he was under arrest or would reasonably have perceived himself to be under arrest, proper Miranda warnings were given, and these warnings were given so often after that that counsel argued below that they were given too many times. We find nothing to contradict the State's evidence showing that Rhode's statements were voluntary and that he never requested an attorney or wished to remain silent. See Miranda, 384 U. S. 436; OCGA 24-3-50.

9. Rhode complains that photographs and other exhibits depicting the victims and the crime scene were improperly presented to the jury. This Court finds nothing in the record to support Rhode's contention that the trial court abused its discretion in weighing the probative value of any contested items against their allegedly improper prejudicial impact. See Heidler v. State, 273 Ga. 54, 60-61 (6) (537 SE2d 44) (2000); Woods v. State, 265 Ga. 685, 687 (3) (461 SE2d 535) (1995).

10. (a) Because the only evidence even remotely suggestive of a "serious provocation" sufficient to cause a reasonable person to kill was testimony suggesting that Steven Moss charged at Rhode upon witnessing the murder of his two children during an ongoing burglary, we find that a charge on voluntary manslaughter was not warranted. See Nance v. State, 272 Ga. 217, 221 (3) (526 SE2d 560) (2000); Horton v. State, 249 Ga. 871, 872 (1) (295 SE2d 281) (1982); OCGA 16-5-2.

(b) Because the evidence in this case afforded no basis whatsoever for a finding that the killings were unintentional or that Rhode was guilty of trespass rather than burglary, the trial court properly refused to charge the jury on involuntary manslaughter involving an unintentional killing during an unlawful act other than a felony. OCGA 16-5-3 (a). Even if it were admitted that Rhode shot Steven Moss when Steven, unarmed, resisted the burglary of his home and the murder of his two children, such admission would not show that Rhode committed a lawful act of self-defense, and, therefore, a charge on involuntary manslaughter involving a lawful act committed in an unlawful manner would not be warranted. Daniel v. State, 187 Ga. 411, 412 (1) (1 SE2d 6) (1939) (holding that one cannot create an emergency requiring a killing and then claim self-defense), overruled on other grounds by McMichael v. State, 252 Ga. 305, 309, n. 7 (313 SE2d 693) (1984); OCGA 16-5-3 (b).

(c) The evidence was overwhelming that Rhode was guilty of felony murder for the killing of Bryan Moss. The jury, by also finding Rhode guilty of malice murder, made an additional, specific finding that Rhode intended Bryan's killing. In light of these circumstances, it is highly probable that the trial court's refusal to give a charge on aggravated assault did not contribute to the verdict. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

Sentencing Phase

11. Rhode argues that two confessions to crimes unrelated to the Moss murders, which he made when he was a juvenile, were improperly admitted during the sentencing phase. Two hearings held outside the jury's presence showed that both confessions were made after Rhode and his mother had been advised of and had acknowledged his Miranda rights, that he and his mother had then agreed to the interviews, and that his mother had remained present throughout both interviews. The trial court properly found that the confessions were voluntarily made and were preceded by Miranda warnings, even under the more stringent requirements applicable to the statements of minors. Id.; Riley v. State, 237 Ga. 124, 127-128 (226 SE2d 922) (1976).

Rhode also argues that these juvenile confessions should have been suppressed because law enforcement officers did not, prior to their making, bring him before a juvenile court or contact a juvenile court intake officer for a determination of whether he should have been released or detained. See OCGA 15-11-19 (a) (3); 15-11-7 (b). Pretermitting the fact that this Court has previously held that "statements obtained in violation of the [Georgia] Juvenile Code are not rendered per se inadmissible," Lattimore v. State, 265 Ga. 102, 103-104 (2) (b) (454 SE2d 474) (1995), and the fact that the confessions at issue were made in Louisiana, this Court holds that Rhode waived his right to raise this issue on appeal by failing to raise it specifically at trial. Earnest, 262 Ga. at 495 (1).

12. Rhode contends that the prosecutor injected inadmissible hearsay into the sentencing proceedings by asking Rhode's mother on cross-examination if she had been present when a trial judge in Louisiana made certain comments to Rhode when sentencing him for burglary. Pretermitting whether the prosecutor was attempting to elicit hearsay testimony (specifically whether the out-of-court statement was offered for the truth of the matter asserted therein) and whether the testimony would have been cumulative of other admissible evidence and thus harmless, this Court holds that Rhode waived his right to raise this issue on appeal by failing to object at trial. Id.

13. Rhode contends that the prosecutor's cross-examination of him and the prosecutor's closing argument during the sentencing phase of the trial were improper and require reversal. Rhode raised a single objection during the prosecutor's cross-examination, arguing that the prosecutor was taking too long to arrive at an actual question. We find no error in the trial court's resolution of that objection, which was essentially withdrawn. Rhode's right to raise his other contentions on appeal were waived by his failure to object at trial, except insofar as the challenged questions and comments might have in reasonable probability changed the jury's exercise of its discretion in sentencing Rhode to death. See Gissendaner v. State, 272 Ga. 704, 713-714 (10) (b) (532 SE2d 677) (2000). See also Heidler, 273 Ga. at 64-65 (18). Although they were not preserved for appeal, this Court finds meritless Rhode's specific contentions that the prosecutor improperly disparaged the role of mercy and argued improperly by quoting Rhode's own statement under cross-examination, "My conscience is clear as far as anybody's death. . . ." See Ford v. State, 255 Ga. 81, 93-95 (8) (i-2) (335 SE2d 567) (1985) (addressing a closing argument that suggested mercy was not appropriate in that case), vacated on other grounds by Ford v. Georgia, 479 U. S. 1075 (107 SC 1268, 94 LE2d 129) (1987). Pretermitting whether any of Rhode's other, more generalized allegations of impropriety have any merit, this Court concludes upon its review of the record that there is no reasonable probability that the alleged improprieties changed the jury's choice of sentence and that, therefore, these alleged improprieties cannot serve as the basis for reversal.

14. (a) The jury's findings that the murder of Bryan Moss was committed during the murder of Kristin Moss, that the murder of Kristin Moss was committed during the murder of Steven Moss, and that the murder of Steven Moss was committed during the murder of Bryan Moss did not violate the rule against mutually-supporting aggravating circumstances. Hightower v. State, 259 Ga. 770, 772 (5) (386 SE2d 509) (1989). See OCGA 17-10-30 (b) (2).

(b) Even if Rhode had been sentenced to death for committing kidnapping with bodily injury against Bryan Moss in addition to being sentenced to death for Bryan Moss's murder, there would be no violation of the rule against mutually-supporting aggravating circumstances. Potts v. State, 261 Ga. 716, 720-721 (4) (410 SE2d 89) (1991). There was certainly no such violation here where a life sentence was imposed for the kidnapping with bodily injury.

(c) Burglary and kidnapping with bodily injury are not impermissible as statutory aggravating circumstances simply because they are less-serious crimes than murder, which can also serve as a statutory aggravating circumstance.

(d) This Court has determined that kidnapping and kidnapping with bodily injury are distinct crimes. See Patrick v. State, 247 Ga. 168, 170 (274 SE2d 570) (1981); OCGA 16-5-40. Accordingly, Rhode's argument that the State relied upon a non-existent crime by including kidnapping with bodily injury as an alleged statutory aggravating circumstance is meritless.

15. The sentencing phase jury charges on mitigating circumstances, which were taken from the pattern jury charges, were not improper. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 4 (B), pp. 82, 88 (1999). The trial court defined and set forth the function of mitigating circumstances in a manner that would not have misled the jurors. See Fugate v. State, 263 Ga. 260, 262-263 (5) (431 SE2d 104) (1993). The trial court did not err by failing to charge the jury that findings of mitigating circumstances need not be unanimous, because the trial court properly charged the jury that it need not find any mitigating circumstances in order to return a sentence less than death. Palmer v. State, 271 Ga. 234, 238 (6) (517 SE2d 502) (1999). Viewing the sentencing phase charge as a whole, this Court concludes that the jury was not misled into believing that mitigating circumstances must be proven beyond a reasonable doubt or, for that matter, that any particular burden of proof rested on the defense as to mitigating circumstances. Id. The trial court was not required to identify in its charge the contended specific mitigating circumstance of residual doubt. See Johnson v. State, 271 Ga. 375, 385 (17) (519 SE2d 221) (1999).

16. Rhode contends that the trial court's sentencing phase charge on the OCGA 17-10-30 (b) (7) statutory aggravating circumstance was unconstitutional for vagueness. The charge in question, which was taken directly from the pattern jury instructions and properly adjusted according to the evidence, was not unconstitutional. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 4 (B), pp. 84-86 (1999); West v. State, 252 Ga. 156, 158-160 (2), 161-162 (313 SE2d 67) (1984) (recommending a suitable clarifying jury charge); compare Godfrey v. Georgia, 446 U. S. 420 (100 SC 1759, 64 LE2d 398) (1980).

Rhode also contends that the jury's partial reliance on the OCGA 17-10-30 (b) (7) statutory aggravating circumstance in recommending that he receive the death penalty for the murder of Bryan Moss was unconstitutional because it imposed vicarious liability on him for Lucas's actions. This contention fails because, although the evidence suggested that Lucas was the triggerman in Bryan's murder, the evidence also supported a finding of depravity of mind on Rhode's part with regard to that murder in that Rhode continued to aid and abet Lucas in the murder despite the child's young age, despite an initial aggravated battery to the child that was committed in Rhode's presence, and despite the large number of gunshots required to kill the child. See Thomas v. State, 247 Ga. 233 (275 SE2d 318) (1981).

Constitutional Issues

17. Rhode filed a motion to have execution by electrocution declared unconstitutional, but no evidence was admitted in support of this claim. This Court finds that the motion, standing alone, was insufficient to require that it be granted. See Colwell v. State, 273 Ga. 634, 640 (6) (544 SE2d 120) (2001) ("In the absence of admissible evidence demanding a different result, the trial court did not err in declining to declare execution by electrocution unconstitutional.").

18. The Unified Appeal Procedure exists for the protection of the rights of defendants in death penalty cases and is not unconstitutional or improper for any of the reasons alleged in this appeal. Gissendaner, 272 Ga. at 716 (18); Jackson v. State, 270 Ga. 494, 498-499 (10) (512 SE2d 241) (1999).

19. Georgia's death penalty statute is not unconstitutional, and, more specifically, "[t]his Court's review of death sentences is neither unconstitutional nor inadequate under Georgia statutory law." Gissendaner, 272 Ga. at 716 (16).

20. OCGA 16-5-1, which defines malice murder and felony murder, is not unconstitutional for any of the reasons alleged in this appeal. See Speed v. State, 270 Ga. 688, 698 (48) (512 SE2d 896) (1999); Chester v. State, 262 Ga. 85, 88 (3) (414 SE2d 477) (1992).

Sentence Review

21. Rhode actively participated in two burglaries of the Moss home, and he was armed at least during the second burglary. When confronted by 11-year-old Bryan Moss who was attempting to protect his family's home with a baseball bat, Rhode, along with Lucas, committed aggravated assault upon the child with a pistol. Although Rhode claims he was surprised when Lucas first opened fire on Bryan, inflicting a non-fatal wound, Rhode's conduct afterward demonstrated his intent to kill not only 15-year-old Kristin Moss, whom Rhode admitted shooting, but also Bryan, who was likely shot to death with Rhode's knowledge as Rhode held Kristin at gunpoint.

The evidence also suggested that Rhode was the triggerman in the killing of Steven Moss. While absolute certainty as to how many shots Rhode fired at each of the victims cannot be obtained, as the only surviving witnesses to the crimes are Rhode and Lucas, the evidence in Rhode's trial showed that he participated in all three murders. Although there was evidence that Rhode consumed alcohol and drugs on the day of the crimes and appeared to be "speeding," and although Rhode contended that his recollection of events was "hazy," the jury's reaction to the evidence of some level of intoxication within the context of the other evidence presented at trial was not unreasonable or excessive. See Ross v. State, 233 Ga. 361, 366-367 (2) (211 SE2d 356) (1974) ("It is the reaction of the sentencer to the evidence before it which concerns this court and which defines the limits which sentencers in past cases have tolerated. . . .").

The evidence showed that Rhode had a history of criminal conduct before the murders and that he escaped from the Jones County jail and participated in an attack on a guard in the Putnam County jail while awaiting trial in this case. See Gissendaner, 272 Ga. at 717 (19) (a) (noting that "past conduct and conduct after the crime" are relevant in a proportionality review). This Court's proportionality review "includes special consideration of the sentences received by co-defendants in the same crime," and, accordingly, the Court notes that Lucas has also been sentenced to death. Allen v. State, 253 Ga. 390, 395-396 (8) (321 SE2d 710) (1984).

This Court concludes, considering both the crimes and the defendant, that the death sentences imposed for the murders in this case were neither excessive nor disproportionate to the penalties imposed in similar cases in Georgia. OCGA 17-10-35 (c) (3); see id. The cases appearing in the Appendix support this conclusion in that each demonstrates a jury's willingness to impose a death sentence where a defendant has committed more than one murder.

22. The death sentences in this case were not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA 17-10-35 (c) (1).

APPENDIX.

CARLEY, Justice, concurring.

I concur in the opinion and in the affirmance of the conviction and death sentence. With regard to the enumeration of error discussed in Division 17, however, it should be emphasized that this Court has consistently and recently held that execution by electrocution is not unconstitutional. King v. State, 273 Ga. 258, 261 (5) (539 SE2d 783) (2000); Heidler v. State, 273 Ga. 54, 66 (25) (537 SE2d 44) (2000); Gissendaner v. State, 272 Ga. 704, 716 (16) (532 SE2d 677) (2000).

Fredric D. Bright, District Attorney, Gregory L. Bushway, Assistant District Attorney, Thurbert E. Baker, Attorney General, Karen A. Johnson, Assistant Attorney General, for appellee.

Notes

1  The crimes were committed April 23, 1998. Rhode was indicted June 30, 1998, by a Jones County grand jury for three counts of malice murder, three counts of felony murder, two counts of burglary, and one count of kidnapping with bodily injury. The State filed written notice of its intent to seek the death penalty December 18, 1998. Rhode's trial began February 14, 2000, and the jury found him guilty on all counts on February 25, 2000. The felony murder verdicts were vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993); OCGA 16-1-7 (a) (1). The jury fixed the sentences for the murders at death February 27, 2000. In orders filed February 27, 2000, the trial court imposed a death sentence for each murder and consecutive terms of life imprisonment for the kidnapping with bodily injury and twenty years for each of the two burglaries. Rhode filed a motion for new trial March 3, 2000, which was denied by an order filed December 22, 2000. He filed a notice of appeal December 27, 2000, and his appeal was docketed in this Court February 7, 2001. The appeal was orally argued June 11, 2001.

John F. Nebl, Francis N. Ford, Holly L. Geerdes, for appellant.

DECIDED OCTOBER 1, 2001 -- RECONSIDERATION DENIED OCTOBER 22, 2001.

582 F.3d 1273

BRANDON RHODE, Petitioner-Appellant,
versus
HILTON HALL, Warden, Georgia Diagnostic Prison, Respondent-Appellee.

No. 08-16960

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

September 17, 2009, Decided
September 17, 2009, Filed

Appeal from the United States District Court for the Middle District of Georgia. D. C. Docket No. 07-00248-CV-CAR.

AFFIRMED.

JUDGES:   Before CARNES, HULL and WILSON, Circuit Judges.

OPINION

PER CURIAM:

Brandon Rhode, a Georgia death row inmate, appeals from the district court's denial of his federal habeas corpus petition. The court granted a certificate of appealability ("COA") as to Rhode's claim of ineffective penalty phase investigation and presentation of mitigation evidence by his trial counsel. For the reasons that follow, we affirm the district court's denial of Rhode's petition.

I. BACKGROUND

A. The Crimes

The Georgia Supreme Court provided the following account of the crimes in its opinion affirming Rhode's convictions:

Rhode and his co-perpetrator, Daniel Lucas, burglarized the home of Steven and Gerri Ann Moss on April 23, 1998, fled the scene when Rhode discovered an alarm system, and returned later that day to burglarize the home again. While Rhode and Lucas w ere ransacking the home searching for valuables, 11-year-old Bryan M oss arrived, observed Rhode and Lucas through a front window, and entered through a back door, armed with a baseball bat. Rhode and Lucas subdued Bryan at gunpoint, sat  [*2]  him in a chair, and began discussing what to do with him. Lucas turned and fired at the boy, inflicting a non-fatal shoulder wound. As [Bryan's sister] Kristin Moss was approaching the house, Lucas took Bryan into a back bedroom. Rhode met Kristin as she arrived, sat her in a chair, and shot her twice with a .357 caliber pistol. Lucas repeatedly shot Bryan with a .25 caliber pistol. Rhode later shot Steven M oss with the .357 caliber pistol when Steven arrived. Finally, Lucas obtained a .22 caliber pistol from Rhode's automobile and shot Bryan and Kristin again.

Chad Derrick Jackson, Rhode's roommate, testified that he observed Rhode and Lucas handing rifles and other items out of Jackson and Rhode's bedroom window and loading them into Rhode's automobile on the evening of the crimes. Jackson further testified that Rhode and Lucas admitted to him the next day that Lucas first shot Bryan in the shoulder, that Lucas then shot Bryan while Rhode simultaneously shot Kristin, that Rhode next shot Steven M oss, and that lastly Lucas shot each victim to ensure their deaths.

Danny Ray Bell, who also lived in the same house as Rhode, testified that Rhode and Lucas spoke to him between the two  [*3]  burglaries and that Bell advised Rhode not to return to burglarize the same home. Bell testified that, at the time of this conversation, Rhode had a .357 caliber pistol in his waistband. According to Bell, when Rhode returned from the second burglary, Rhode said that he had "messed up big time" and needed to dispose of some weapons and other items. Rhode admitted to Bell that Lucas shot a young boy and that Rhode shot a girl and a man.

Several witnesses testified that they saw an automobile similar to Rhode's at or near the victims' home on the day of the murders. A search of Rhode's automobile revealed damage to the front and rear bumpers and a spare tire in the trunk that showed signs of use. A photograph of the crime scene suggested a vehicle had backed into a gas tank at the victims' home. Expert testimony disclosed that paint on a cement block at the victims' home matched the paint on Rhode's automobile, including two layers applied at the factory and a third layer likely applied later. Additional expert testimony indicated that a crime scene imprint could have been made by Rhode's spare tire.

Rhode made a statement admitting he fired two times at Kristin with the .357 caliber pistol,  [*4]  and he led law enforcement officers to two locations where he and Lucas had secreted weapons and other items. Expert testimony matched the found .357 and .25 caliber pistols to bullets retrieved from the crime scene and the victims' bodies. Rhode v. State, 274 Ga. 377, 552 S.E.2d 855, 858-59 (Ga. 2001).

B. Procedural History

The jury found Rhode guilty of three counts of malice murder, three counts of felony murder, two counts of burglary, and one count of kidnapping with bodily injury. Id. at 858. Rhode's felony murder convictions were vacated by operation of law. Id. He was sentenced to death after the jury concluded that death sentences were warranted for the murder convictions. Id. n1

On March 3, 2000, Rhode moved for a new trial. The court  [*5]  denied his motion on December 22, 2000.

Rhode then appealed to the Georgia Supreme Court, which affirmed his convictions and death sentences on October 1, 2001. The court denied Rhode's motion for reconsideration on October 22, 2001. Rhode petitioned for a writ of certiorari, which the U.S. Supreme Court denied on June 17, 2002.

On April 4, 2003, Rhode filed a state habeas corpus petition to challenge his convictions and sentences. After conducting an evidentiary hearing, the state habeas court denied relief on all claims. In denying relief, the court adopted as its own the State's proposed order and dated it M arch 14, 2006. Rhode then filed an Application for Certificate of Probable Cause to Appeal, which the Georgia Supreme Court denied on April 24, 2007. Ex. 84

On June 25, 2007, Rhode filed pursuant to 28 U.S.C. § 2254 a federal habeas corpus petition in the Middle District of Georgia. The district court denied Rhode's petition but issued a COA.

II. STANDARDS OF REVIEW

Rhode's petition is governed by the Antiterrorism and Effective Death Penalty Act's ("AEDPA") n2 "highly deferential standard for reviewing state court judgments." McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005)  [*6]  (citation and quotation marks omitted). Under AEDPA, a federal court may not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the state court's adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). The statutory phrase "clearly established Federal law" "refers to the holdings, as opposed to the dicta, of [the U.S. Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000) (majority opinion of O'Connor, J.). "[A] determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

"When examining a district court's denial of a § 2254 habeas  [*7]  petition, we review questions of law and mixed questions of law and fact de novo, and findings of fact for clear error." Grossman v. McDonough, 466 F.3d 1325, 1335 (11th Cir. 2006). "An ineffective assistance of counsel claim is a mixed question of law and fact subject to de novo review." McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005).

The U.S. Supreme Court established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the legal principles governing ineffective assistance claims. "An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003) (citing Strickland, 466 U.S. at 687, 104 S. Ct. 2052)).

We have explained that:

The petitioner satisfies the test's performance prong by proving that counsel's performance failed to meet the standard of reasonableness under prevailing professional norms. Our evaluation of counsel's performance is highly deferential; we must indulge a strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise  [*8]  of reasonable professional judgment. W e review counsel's performance from counsel's perspective at the time, to avoid the distorting effects of hindsight. Our review is objective, in that we consider whether there was any reasonable justification for the attorney's conduct. Thus, the petitioner must establish that no competent counsel would have taken the action that his counsel did take.

The petitioner satisfies the Strickland test's prejudice prong by showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir. 2008) (citations and quotation marks omitted). The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S. Ct. 838, 842, 122 L. Ed. 2d 180 (1993) ("[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding  [*9]  was fundamentally unfair or unreliable, is defective.").

III. DISCUSSION

Rhode argues that the district court erred by denying federal habeas relief. First, he argues that counsel rendered ineffective assistance in the investigation of mitigation evidence for the penalty phase of his trial. Second, he argues that counsel's presentation of mitigating evidence at the penalty phase was ineffective. Finally, he argues that the state habeas court's decision to reject his ineffective assistance claims is contrary to clearly established U.S. Supreme Court precedent. All of these arguments fail. We address each in turn.

A. Counsel's Strategy

Before assessing Rhode's ineffective assistance claims, "we must determine the strategy actually pursued by counsel." Blankenship v. Hall, 542 F.3d 1253, 1273 (11th Cir. 2008). Rhode asserts that counsel decided from the beginning that this was a mitigation-only case. The state habeas court found, however, that counsel thought that the penalty phase strategy would involve both mitigation and residual doubt. Ex. 80 at 8.

The state habeas court's finding is not unreasonable. Counsel testified at the evidentiary hearing that the defense believed that the jury,  [*10]  while deliberating during the guilt phase, was "grappling with residual doubt on some portions of the case, and that [its residual doubt] would carry over to the penalty phase." Ex. 59 at 3106. Counsel's trial tactics confirm that belief.

Counsel conceded that Rhode was at the crime scene, but counsel otherwise "fought everything in that case." Ex. 59 at 3063. During the guilt phase, counsel tried to show that Rhode's co-defendant Lucas murdered the three victims while Rhode fired only one shot after Rhode "turned his head and closed his eyes." Ex. 12 at 2009. Rhode's penalty phase testimony supported the defense's account of the murders and may have addressed any residual doubt among the jurors. In addition to providing mitigating testimony about his childhood, Rhode testified that it was Lucas' idea to go to the Moss home on the day of the murders, that he remembered "freezing up" when the shooting started, and that he did not know where the one shot he fired went. Ex. 17 at 3997, 4010-21. During closing argument of the sentencing phase Rhode's attorney addressed the jury directly on the possibility of residual doubt. n3 Counsel's decision to "f[i]ght everything" belies Rhode's assertion  [*11]  that counsel knew that this was a mitigation-only case.

Even if this were a mitigation-only case, we would still conclude that counsel's penalty phase investigation and presentation were not ineffective. W e have explained that "even when trial counsel's investigation is less complete than collateral counsel's, trial counsel has not performed deficiently when a reasonable lawyer could have decided, in the circumstances, not to investigate[]" further. Housel v. Head, 238 F.3d 1289, 1295 (11th Cir. 2001). We have also explained that "counsel [is not] required to present all mitigation evidence, even if the additional mitigation evidence would not have been incompatible with counsel's strategy." Chandler v. United States, 218 F.3d 1305, 1319 (11th Cir. 2000)  [*12]  (en banc). As we explain further below, the state habeas court did not make an unreasonable determination of the facts or contravene clearly established U.S. Supreme Court precedent when it rejected Rhode's claim that counsel rendered ineffective penalty phase investigation and presentation.

B. State Habeas Court Order

Rhode complains that the state habeas court adopted verbatim the State's proposed order as its own. Because the court adopted the proposed order verbatim, Rhode asserts, "the order uncritically incorporates [the State's] selective use of evidence and mischaracterizations of the evidentiary record." Appellant's Br. 23. He characterizes the order as an "artifact of [the State's] having drafted [it] with the specific intent, not of producing a fair and impartial assessment of the facts and law, but of deliberately glossing over or camouflaging significant attorney errors in order to ensure that those errors are shielded from any meaningful review." Appellant's Br. 24. Rhode argues that because the state habeas court's "partisan final order" is based on . . . unreasonable determinations of fact," the district court erroneously denied federal habeas relief. Appellant's Br.  [*13]  24. n4

Rhode seems to be pointing out that the state habeas court adopted verbatim the State's proposed order simply to emphasize his position that the findings of the state habeas court were based on a State centered interpretation of the facts.. However, the record clearly reflects that both Rhode and the State had the opportunity to present the state habeas court with their version of the facts. See Ex. 73, 75. Despite the fact that  [*14]  the state habeas court adopted the State's facts verbatim, these findings of fact are still entitled to deference from this court unless Rhode can show the facts to be clearly erroneous. n5 As discussed further below, the record supports the findings of fact of the state habeas court.

C. Investigation

Rhode argues that counsel inadequately and untimely prepared for the penalty phase because counsel failed to oversee an adequate investigation. He further argues that the state habeas court made an unreasonable determination of the facts when it found that counsel was personally involved in the mitigation investigation. Rhode argues that the investigation was untimely because counsel spent the equivalent of one standard work week (40.16 hours) on the case in the first year of representation and because the defense lost opportunities to develop critical evidence. These arguments are without merit.

1. Performance Prong

a. Inadequate Investigation

Rhode's argument that counsel's investigation was inadequate is without merit. Rhode's counsel included two experienced death penalty lawyers, Frank Ford and Jack Nebl. Ford, who was lead counsel, had practiced criminal law for about nine years by the time he was appointed to the case in June 1998. Ex. 59 at 3046-50. At that time, Ford had already handled several death penalty cases and had attended death penalty seminars annually for six or seven years. Ex. 59 at 3050-54. He asked that Nebl be appointed  [*16]  as co-counsel because Nebl had previous death penalty experience. Ex. 59 at 3056-57. Their extensive experience is important because "[o]ur strong reluctance to second guess strategic decisions is even greater where those decisions were made by experienced criminal defense counsel." Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998).

We agree with the district court that the state habeas court did not unreasonably find that counsel's investigation was adequate. Ford contacted Rhode's mother, Patches Rhodes, almost immediately after his appointment to the case, seeking Rhode's school and medical records. Ex. 59 at 3121. He reviewed tapes of witness statements and the crime scene. Ex. 59 at 3164. He also obtained funding for and hired Dr. Dan Grant, a defense psychologist, and Cheryl Abernathy, a mitigation investigator who had handled over twenty-five death penalty cases. Ex. 59 at 3059-61, 3069, 3119-24, 3205.

Abernathy met with Rhode at least five times to collect information about his life. Ex. 61 at 3896-3901, Ex. 62 at 3903-18. She traveled to Louisiana and Mississippi to interview at least ten potential mitigation witnesses. Ex. 59 at 3215, Ex. 62 at 4004. She prepared  [*17]  her assistant Christopher DiPietro for his own trip to the two states to interview seventeen more potential mitigation witnesses. Ex. 59 at 3224-27, Ex. 62 at 4008. DiPietro shared the information he gathered with Abernathy; she, in turn, provided counsel with all of the information that she and DiPietro had gathered. Ex. 59 at 3207-08. She and DiPietro also interviewed several potential witnesses in Macon, Georgia. They discussed with counsel the results of those interviews. Ex. 59 at 3240-48.

Through the investigation, Abernathy sought records that might contain mitigation evidence, including those from various hospitals, sheriffs' offices, and schools. She forwarded to counsel all of the records that she received. Ex. 59 at 3207-08. And she had numerous telephone conversations with lead counsel about those records. Ex. 59 at 3228-29, 3233.

Although "[p]revailing norms of practice as reflected in American Bar Association standards . . . are [only] guides to determining what is reasonable," Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, counsel's investigation here met those prevailing norms. One of those norms is that "[c]ounsel should conduct interviews of potential witnesses in  [*18]  the presence of a third person so that there is someone to call as a defense witness at trial. . . . [or] have an investigator or mitigation specialist conduct the interviews." American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1020 (2003). Since Rhode's counsel hired investigators who interviewed potential witnesses and shared all of their information with counsel, we cannot say that counsel performed deficiently by delegating the mitigation investigation to them.

And, contrary to Rhode's assertion, the state habeas court did not make an unreasonable determination of the facts when it found that counsel was personally involved in the mitigation investigation. Just because counsel did not personally gather all of the mitigation evidence does not mean that counsel was not personally involved in the investigation. Counsel evaluated all of the evidence that the investigators gathered; consulted them; and, with their help, decided which witnesses should be called to testify at the penalty phase. Ex. 59 at 3088, 3207-08. Thus, the record supports the state habeas court's finding that counsel was personally  [*19]  involved in the mitigation investigation.

b. Untimely Investigation

Rhode's argument that counsel's investigation was untimely is also without merit. Contrary to his intimation, the effectiveness of counsel's representation at sentencing is not an exact derivative of the amount of time counsel spends investigating mitigation evidence. See Conklin v. Schofield, 366 F.3d 1191, 1202 (11th Cir. 2004). Rather, "the time and effort [that counsel spent] in preparing to defend [Rhode] in the guilt phase of [this] capital case continues to count at the sentencing phase." Chandler, 218 F.3d at 1320 n.27. In contrast to Rhode's argument that counsel only spent one standard work week on his case in the first year, Ford's billing records reflect that he alone spent over one hundred and twenty five hours working on Rhode's case in the last eight months prior to trial. See Ex. 59 at 3168-3181. The extensive investigation here confirms counsel's initial belief that the defense strategy would involve mitigation, though not exclusively. See Ex. 59 at 3063.

Rhode notes that Abernathy testified at the state habeas evidentiary hearing that she would have wanted more time to investigate. Ex. 59 at 3261, 3268-69.  [*20]  Her testimony is not, however, a sufficient basis to grant federal habeas relief because the record does not establish that she communicated that thought to Rhode's lawyer. Ex. 59 at 3065-67. The state habeas court noted Ford's testimony that he would have filed an ex parte motion asking for more time and funds if Abernathy had told him that she needed more time to investigate. Ex. 59 at 3066-67; Ex. 80 at 16. The record supports the state habeas court's finding that Abernathy did not tell counsel that she wanted more time to investigate. We agree with the state habeas court that counsel did not ineffectively investigate the mitigation evidence for the penalty phase and that counsel did not, in light of the chosen defense strategy, perform deficiently.

2. Prejudice Prong

Even if counsel performed deficiently by not personally gathering mitigation evidence or by not initially spending much time on the case, counsel's performance was not prejudicial. Counsel reviewed all of the information presented to them, extensively discussed it with the investigators, and, as explained further below, could make strategic decisions based on it. Thus, Rhode fails to show that counsel's investigation  [*21]  rendered "the result of the proceeding . . . fundamentally unfair or unreliable." Lockhart, 506 U.S. at 369, 113 S. Ct. at 842.

The district court properly denied federal habeas relief as to Rhode's ineffective preparation claim.

D. Presentation

Rhode argues that counsel ineffectively presented mitigation evidence by (1) unreasonably failing to inquire meaningfully into or present any mental health related mitigating factors other than Rhode's ability to adapt to prison despite having promised the jury such evidence, (2) unreasonably failing to use records of Rhode's prior psychiatric hospitalization at age thirteen or to contact any staff from the hospital, and (3) failing to review or use his juvenile probation records.

In raising these arguments, Rhode faults counsel for failing to call certain witnesses and not inquiring into certain issues with others, and not introducing evidence that could have been presented. But "[w]hich witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). Furthermore, "[i]t is well-settled in this Circuit  [*22]  that a petitioner cannot establish an ineffective assistance claim simply by pointing to additional evidence that could have been presented." Van Poyck v. Florida Dep't of Corr., 290 F.3d 1318, 1324 (11th Cir. 2002) (per curiam).

Here, counsel had nine lay witnesses, n6 Dr. Grant, and Rhode himself testify during the penalty phase. Counsel testified at the state habeas evidentiary hearing that the defense team chose these specific witnesses to avoid presenting duplicate testimony. Ex. 59 at 3127. The defense team, counsel testified, tried to figure out what each witness could contribute uniquely and informed each what he or she would be asked while on the witness stand. Ex. 59 at 3127. Through the defense's eleven witnesses, counsel developed the following mitigation themes: (1) Rhode could adapt to prison and not be a future danger so there was no need to put him to death n7 ; (2) Rhode had a bad childhood n8 ; (3) Rhode was constantly failed by the adults in his life n9 ; (4) Rhode started to abuse drugs when he was just a child n10 ; (5) Rhode was a follower led by Lucas, his co-defendant who was more responsible for the crimes n11 ; (6) Rhode was not evil and had done good deeds in the  [*23]  past n12 ; and (7) many innocent people would be penalized if Rhodes were sentenced to death. n13 For the reasons explained further below, Rhode's argument that counsel ineffectively presented mitigation evidence is without merit.

1. Performance Prong

a. Mental Health

Rhode faults counsel for failing to deliver on the defense's promise to the jury that an expert witness, Dr. Grant, would testify "as to [Rhode's] psychological state . . . and [would] have a definite opinion as to how [Rhode]  [*24]  became involved in this type of life style and eventually became involved with [the crimes]." Ex. 17 at 3642. Contrary to Rhode's assertion, however, Dr. Grant testified accordingly. Dr. Grant told the jury that Rhode's drug use interfered with his ability to learn to deal with people and that the lack of structure at home caused many of his problems. He further testified that Rhode would be able to adapt to prison and not be a danger to anyone because prison provides a structured environment with strict limits and few choices. He explained that if drugs and alcohol were removed from Rhode's life, their absence would "eliminate a lot of . . . problems." Ex. 17 at 4080.

Rhode faults counsel for not hiring an expert like Dr. David Fassler, a psychiatrist retained by Rhode who testified at the state habeas evidentiary hearing. See Ex. 47 at 212-61. Dr. Fassler testified that Rhode's development of severe polysubstance addiction occurred through his exposure from infancy to drug and alcohol abusing family members at every turn. Dr. Fassler concluded that Rhode had no real choice in the development of his addiction, which extended through the time of the crime. He also offered expert testimony  [*25]  about Rhode's problems with judgment and impulse control. He testified that Rhode's organic brain damage impaired his ability to control his impulses and behavior. Ex. 47 at 241-42. Rhode contends that Dr. Fassler's testimony is the kind of testimony that counsel promised to present during the penalty phase but never delivered.

Dr. Fassler's testimony, however, merely expands upon that of Dr. Grant, who also found, but as part of the defense strategy did not tell the jury, that Rhode had organic brain damage. The emergence of an additional expert witness at a state collateral proceeding does not mean that trial counsel was ineffective. See Hendrix v. Sec'y, Fla. Dep't of Corr., 527 F.3d 1149, 1154 (11th Cir. 2008). "[C]laims based on such witnesses are made seemingly without regard to the trial counsel's actual investigation and the basis for his strategic decisions." Id. Counsel reasonably believed that the jury would see Rhode's impulsive behavior, which more than one expert believed was triggered by his organic brain damage, as aggravating.

Rhode also faults counsel for not introducing Dr. Jerold Lower's report. Dr. Lower, a State psychologist who evaluated Rhode, reported that although  [*26]  Rhode did not suffer from a major disorder of thought or mood that rendered him insane at the time of the crimes, Ex. 50 at 1079-84, Rhode's most serious psychiatric problem was his substance abuse and his resulting organic brain damage. Ex. 50 at 1081.

The state habeas court reasonably concluded, however, that counsel strategically decided not to introduce Dr. Lower's report. The report would have exposed to the jury how lightly Rhode made of his drug abuse. It would also have exposed Rhode's view of himself as antisocial and unable to learn from punishing experiences. Ex. 80 at 34-35.

Keeping Lower's report away from the jury was reasonable because counsel, through Dr. Grant, tried to show that Rhode could adapt to prison. Since Rhode's counsel could have reasonably believed that the jury would consider the report aggravating rather than mitigating, we cannot say that counsel performed deficiently by not presenting it.

b. Prior Records

Rhode further faults counsel for failing to use Rhode's prior psychiatric hospitalization records or juvenile probation records and not contacting anyone from New Orleans Adolescent Hospital ("NOAH"), including psychiatric social worker Frances Wellington,  [*27]  who had treated Rhode and could have offered mitigation testimony. Rhode argues that counsel's failure to use that evidence prejudiced the defense because the evidence would have rebutted Patches Rhode's intimation that her son had wilfully rejected treatment.

The record supports the state habeas court's finding that counsel had copies of the NOAH records and juvenile probation records before trial and gave them to Dr. Grant for his review. The record also shows, for example, that counsel obtained and reviewed a June 1993 psychological assessment by Dr. Jorge H. Durana, a NOAH clinical psychologist. Dr. Durana evaluated Rhode after Rhode was arrested as a juvenile on five felony charges and two counts of misdemeanor trespassing. Dr. Durana found that Rhode had a significant history of antisocial behavior and a disregard for rules and the well being of others.  [*28]  Ex. 62 at 3947. Rhode's NOAH records, in fact, indicate that he was disciplined during his treatment for breaking major rules. They show that he was frequently uncooperative, undermining, and generally in denial. Ex. 62 at 3943, 3951.

Counsel's decision not to introduce Rhode's NOAH and juvenile probation records at trial was strategically reasonable because the jury could have seen them as aggravating and inconsistent with counsel's argument that Rhode could adapt to prison. Counsel did not perform deficiently by failing to present Wellington's testimony because the emergence of an additional expert witness at a state collateral proceeding does not mean that trial counsel was ineffective. Hendrix, 527 F.3d at 1154.

2. Prejudice Prong

Even if counsel performed deficiently by failing to present the above mitigating evidence, Rhode still fails to show prejudice. First, his experienced counsel had the opportunity to evaluate the evidence that Rhode argues counsel should have presented during the penalty phase. Counsel strategically determined, however, that the jury could view that evidence as aggravating. We are strongly reluctant to second guess these types of determinations by counsel.  [*29]  Provenzano, 148 F.3d at 1332.

Second, much of the evidence that Rhode faults counsel for not presenting to the jury is potentially aggravating or cumulative. Counsel is not required to present cumulative evidence or evidence incompatible with the defense strategy. Van Poyck, 290 F.3d at 1324 n.7; Chandler, 218 F.3d at 1319. Dr. Fassler's testimony would have merely expanded upon Dr. Grant's, which the penalty phase jury heard. Dr. Lower's report, Dr. Durana's psychological assessment, and Rhode's NOAH and juvenile probation records would have, at worst, been perceived as inconsistent with counsel's argument that the jury should consider a penalty other than death and that Rhode could adapt to prison. At best, the evidence would have been cumulative, providing more information about Rhode's bad childhood and early exposure to drugs and alcohol. Because the evidence that Rhode faults counsel for failing to present is either inconsistent with the defense strategy or cumulative, he cannot establish ineffective assistance in counsel's failure to present it.

Finally, Rhode testified during the penalty phase. He told the jury, "I accept what I've done. But in all fairness, I can't blame anyone  [*30]  else. You know, no one. It's my responsibility." Ex. 17 at 4004. By "[choosing] to testify on his own behalf, he ran the risk that the jury might conclude the opposite of his testimony is true." Atkins v. Singletary, 965 F.2d 952, 961 n.7 (11th Cir. 1992). For these reasons, Rhode fails to show "a reasonable probability that, but for counsel's [supposed] errors, the result of the proceeding would have been different." Newland, 527 F.3d at 1184.

The district court properly denied federal habeas relief as to Rhode's ineffective presentation claim.

E. "Contrary to"

Rhode argues that the state habeas court's decision is contrary to Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) and Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005). In so arguing, he asserts that his jury appeared to struggle with its verdicts during both the guilt and penalty phases. He argues that the jury's struggle suggests that had counsel presented more mitigating evidence, there is a strong likelihood that "at least one juror would have struck a different balance." Wiggins, 539 U.S. at 537, 123 S. Ct. at 2543. Rhode argues that the state habeas court overlooked the jury's struggle when it found that  [*31]  counsel's performance did not prejudice the defense. In overlooking that struggle, he argues, the state habeas court failed to assess whether the entire record raised a reasonable probability that the outcome would be different.

A state court decision is "contrary to" the U.S. Supreme Court's clearly established precedent "if the state court applies a rule that contradicts the governing law set forth in [the U.S. Supreme Court's] cases," Williams, 529 U.S. at 405, 120 S. Ct. at 1519, or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the U.S. Supreme] Court and nevertheless arrives at a result different from [the Court's] precedent," id. at 406, 120 S. Ct. at 1519-20. The phrase "clearly established Federal law" "refers to the [Court's] holdings," not dicta. Id. at 412, 120 S. Ct. at 1523.

The state habeas court's decision here is not contrary to clearly established U.S. Supreme Court precedent because Rhode's case is not materially indistinguishable from Williams and Rompilla. Unlike counsel in those two cases, Rhode's counsel did not, as explained above, perform deficiently. Unlike Williams' counsel, who did not adequately investigate  [*32]  for mitigating evidence, Rhode's counsel strategically decided not to present certain mitigating evidence after a thorough investigation. Cf. Williams, 529 U.S. at 396, 120 S. Ct. at 1514 ("[T]he failure to introduce the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a tactical decision to focus on Williams' voluntary confession."). And, unlike Rompilla's counsel, Rhode's counsel did not fail to examine any file that the prosecutor warned would be used at trial. Cf. Rompilla, 545 U.S. at 377, 125 S. Ct. at 2460 ("hold[ing] that . . . [a capital defendant's] lawyer is bound to make reasonable efforts to obtain and review materials that counsel knows the prosecutor will probably rely on as evidence of aggravation at the sentencing phase of trial").

The state habeas court's decision is not contrary to clearly established U.S. Supreme Court precedent.

IV. Conclusion

The district court did not err by denying federal habeas relief as to Rhode's claim that counsel rendered ineffective penalty phase investigation and presentation. Rhode has failed to show that the state habeas court's decision is contrary to, or an unreasonable application of,  [*33]  clearly established federal law, or resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented.

AFFIRMED.