Final Meal:
Two steaks, a baked potato, salad, bread, apple pie, a soft drink and potato chips.

Final Words:
"I know it's been 20 years of pain and hurt, but during those 20 years I suffered, too. I cared and I loved, too, for Maxine and Brandy. It began with a syringe in my arm and this day is ending with a needle in my arm. It's come full circle." He thanked his attorneys and singled out four death row inmates to "hang in there and stay strong. Take care, 'cause I'm coming home.Lord, hallelujah.Yes, thank you."

Internet Sources:

Ohio Department of Rehabilitation and Correction (Executions)

JOHN R HICKS
Inmate #: A 189423
Offense AGG ROBBERY, AGG MURDER, AGG MURDER
Committing County: HAMILTON
Date of Admission: 19860303
Institution: Mansfield Correctional Institution

Reuters News

"Ohio execution is 999th in US since '76," by Jim Lekrone. (Tue Nov 29, 2005 12:00 PM)

COLUMBUS, Ohio (Reuters) - A man who killed his mother-in-law and 5-year-old stepdaughter after a cocaine binge 20 years ago was executed by the state of Ohio on Tuesday, the 999th person put to death since United States reinstated capital punishment in 1976. John Hicks, 49, died at 10:20 a.m. EST (1520 GMT) after an injection of lethal chemicals, officials at the Southern Ohio Correctional Facility in Lucasville said.

Just before his execution, Hicks told those present he was sorry for the pain he caused, saying he loved both of the people he killed and wished he could bring them back. "It began with a syringe in my arm," he said, "and today I have a needle in my arm. I have come full circle and am at peace with it."

Hicks was sentenced to a jail term for killing his mother-in-law, Maxine Armstrong, and ordered executed for killing his step-daughter, Brandy Green. He confessed to the slayings a few days after the bodies were found in Cincinnati, saying he tried to rob Armstrong because he needed more money for drugs, and smothered the little girl as she slept because she had seen him earlier and could identify him.

Hicks asked for clemency but Gov. Bob Taft said he had offered no reason to justify it. "There is overwhelming evidence of guilt in this case. ... (He) confessed to the authorities on two separate occasions, and he fully admits he committed these crimes," Taft said. Hicks was the 18th person executed in Ohio since the state resumed capital punishment in 1999.

Granted a special meal of his choice the evening before his execution, he asked for two steaks, a baked potato, salad, bread, apple pie, a soft drink and potato chips.

Cincinnati Post

"Hicks executed for 1985 murders," by David Holthaus. (November 29, 2005)

LUCASVILLE - More than 20 years after his convictions for murder, John Hicks received the ultimate punishment Tuesday.

With $66.43 worth of drugs, the state of Ohio executed the 49-year-old Hicks for the murder of his 5-year-old stepdaughter, Brandy Green, and his 56-year-old mother-in-law, Maxine Armstrong, at a Walnut Hills apartment in August 1985. The execution began in his holding cell where medical staff inserted two intravenous shunts, one in each arm, and locked them into place to deliver the sodium pentothal that put him to sleep and the two other drugs to stop his breathing and his heartbeat.

Hicks then walked 17 steps into the death chamber where he was strapped to a bed that was bolted to the floor. He asked for his glasses, which the warden placed on his face. He looked to the left into the witness chamber searching for recognizable faces.

He then spoke his last words: "I know it's been 20 years of pain and hurt, but during those 20 years I suffered, too. I cared and I loved, too, for Maxine and Brandy." Hicks, whose quest for drug money in 1985 led to the murders, said, "It began with a syringe in my arm and this day is ending with a needle in my arm. It's come full circle." He thanked his attorneys and singled out four death row inmates to "hang in there and stay strong." Then he said, "Take care, 'cause I'm coming home."

With that, the drugs began to flow. As they did, he shook his head and said, "Lord, hallelujah." He laughed, smiled and said, "Yes, thank you." Then he fell silent. Warden Edwin Voorhies Jr. declared the time of death to be 10:20 a.m.

On his last night alive, Hicks spoke to his mother, brother and a friend by phone. A death row minister, Rev. Gary Sims, counseled him. In his final days and hours, Hicks remained calm and compliant, reading the Bible, listening to the radio and talking with Sims. "He had a peaceful night," said prison spokesperson Andrea Dean.

His two attorneys, Marc Mezibov and William Lazarow, were the only witnesses representing Hicks. His parents stayed in Toledo. Brandy Green's aunt and uncle, Pamara and Douglas Hughes, and her cousin, Tia Tuskin, witnessed the death from the victim's side. Hicks and his attorneys made a last-minute appeal to the U.S. Supreme Court, but the court refused to hear it and did not comment.

Hicks became the 19th person to be executed in Ohio since the state resumed the death penalty in 1999. He was the 999th person to be put to death nationwide since a 1976 U.S. Supreme Court ruling that allowed states to move forward with the death penalty.

In 1985, Hicks was cocaine user desperate for money to buy the drug. He had already stolen his mother-in-law's VCR and pawned it for drug money. But he worried his wife would notice the missing VCR - she had already confronted him earlier that summer about money missing from their bank account. So Hicks went back to his mother-in-law's apartment to steal money to buy back the VCR. He found his stepdaughter asleep on a sofa and took her to her bedroom, waking her in the process. After he put her to bed, he returned to the living room and his mother-in-law, eventually choking her to death. An hour or more later, he returned to the apartment, after realizing that Brandy had been the last to see him in the apartment, and could potentially identify him as her grandmother's killer. Hicks used a pillowcase and duct tape to smother Brandy.

In February 1986, a Hamilton County Common Pleas court jury found Hicks guilty of seven counts, including two counts of aggravated murder. A week later, then-Judge Simon Leis Jr., now the Hamilton County sheriff, imposed the death sentence. The Ohio Supreme Court and the U.S. Supreme Court both refused to review Hicks' case.

Two other executions are scheduled this year, including John Spirko, who continues to maintain his innocence in the death of a postmistress. Seven Ohio inmates were executed last year, second-highest in the nation after Texas.

Cleveland Plain Dealer

"John Hicks faces execution in Ohio today." (AP Tuesday, November 29, 2005)

Columbus- Gov. Bob Taft on Monday denied clemency to a man who strangled his mother-in-law and suffocated his 5-year-old stepdaughter while high on cocaine. John Hicks is set to be executed by injection today at the Southern Ohio Correctional Facility in Lucasville.

Hicks, 49, received the death sentence for the 1985 murder of Brandy Green. Hicks also was sentenced to 30 years in prison for killing 56-year-old Maxine Armstrong and 10 to 25 years for aggravated robbery. Both were killed in Armstrong's Cincinnati apartment.

Hicks' attorney, Marc Mezibov, said he was disappointed with Taft's decision.

Akron Beacon Journal

"Ohio executes man who killed two family members," by Sarah Anderson. (Associated Press Posted on Tue, Nov. 29, 2005)

LUCASVILLE, Ohio - Ohio carried out the nation's 999th execution since 1977 on Tuesday, putting to death a man who strangled his mother-in-law while high on cocaine and later suffocated his 5-year-old stepdaughter with duct tape to cover up the crime. John Hicks, 49, died by injection at 10:20 a.m. at the Southern Ohio Correctional Facility, setting up the likely 1,000th execution since the United States widely resumed executions in 1977. Robin Lovitt is scheduled to be executed Wednesday in Virginia for stabbing to death a pool hall manager with a pair of scissors.

Hicks, who turned himself in to police after the 1985 murders, tried to avoid the death penalty by arguing that his cocaine use made him lose control. Strapped to a gurney, Hicks had officers put on his glasses and he looked toward the victims' family members. "It begun with a syringe in my arm and it ends with a needle in my arm," Hicks said. "It's come full circle. I realize that."

Hicks traded his VCR for about $50 worth of cocaine, court records show. After taking the drugs, he realized that he needed to get the VCR back before his wife wondered where it was, so he decided to steal money from mother-in-law Maxine Armstrong. Hicks found his stepdaughter, Brandy Green, asleep on the couch at Armstrong's apartment. He woke her and brought her to bed and then strangled Armstrong, first with his hands and then with a clothesline. He left her apartment with about $300 and some credit cards. He used some of the money to buy back his VCR and purchase more cocaine. Realizing Green could identify him as the last person at the apartment, he returned and attempted to suffocate the 5-year-old with a pillow then strangle her with his hands. She struggled, and Hicks covered her mouth and nose with duct tape. He received the death penalty for the girl's murder.

Hicks said before he was executed that he wished he could bring his victims back and told the their relatives that he felt the same pain they did every day for the last 20 years. "I know this may be shallow or hollow words to y'all but it's coming from my heart," he said. As the drugs began to flow, Hicks shook his head and said, "Whoa. Hallelujah." He continued shaking his head for a few seconds and laughed loudly. "Yes. Thank you," he said before swallowing hard and closing his eyes.

Douglas Hughes, Armstrong's son-in-law, said he did not believe Hicks' final statement was sincere. "He showed no real remorse," Hughes said. "He never once apologized to the family and never asked forgiveness. At one point, he was actually laughing." Hughes watched the execution with his wife and daughter.

Shortly before the execution, the U.S. Supreme Court denied Hicks' final appeal without comment. On Monday, the 6th U.S. Circuit Court of Appeals in Cincinnati denied his request to delay his sentence, and Gov. Bob Taft refused to commute his sentence to life in prison. He offered a tearful apology in an early November interview with Ohio Parole Board members, saying he loved both victims.

Defense attorney Marc Mezibov has argued Hicks should have been granted a new trial because prosecutors had suggested Hicks should be executed before jurors had returned a verdict. Appellate judges noted that prosecutors should not have mentioned sentencing before jurors had a verdict. However, they said evidence of his guilt was overwhelming. Prosecutors argued his use of duct tape showed premeditation. Mezibov recalled photographs of Hicks with the victims at a birthday party a year before the murders. Hicks was a thoughtful, loving man who couldn't have committed such gruesome crimes "unless something was awfully, awfully wrong," said Mezibov, who witnessed the execution.

Hicks' immediate family members did not travel to Lucasville because Hicks did not want them to go through any more pain, Mezibov said. Hicks was the fourth person executed in Ohio this year and the 19th since the state resumed executions in 1999.

Cleveland Plain Dealer

"Night on coke set the stage for execution," by Terry Kenney. (Monday, November 28, 2005)

Cincinnati- The Los Angeles Dodgers were playing the Cincinnati Reds the night John Hicks told his wife he was going to a ballgame while she worked the night shift at a downtown bank. Instead, Hicks spent the last of his money getting high on cocaine and, before the night was over, strangled his wife's mother and suffocated his wife's 5-year-old daughter.

Hicks, 49, is to be put to death by injection Tuesday for those murders 20 years ago. It would be Ohio's fourth execution this year and the 999th nationally since the United States resumed executions in 1977. "There were times I wanted to see him to ask him why did it, but I never did," said Hicks' sister-in-law, Pamara Hughes. Her sister Ghitana, who was married to Hicks, deals with her memories by refusing to talk about them.

After a brief trial, Hicks, 49, was convicted of the Aug. 2, 1985, murders of Maxine Armstrong, 56, and his stepdaughter, Brandy Green. He was sentenced to 30 years in prison for Armstrong's killing, 10 to 25 years for aggravated robbery, and was given the death penalty for killing Brandy.

Cincinnati Enquirer

"An execution approaches under radar, by Jon Craig. (Sunday, November 27, 2005)

COLUMBUS - In case you missed it ... Ohio is about to execute its 18th convicted killer since the state resumed capital punishment in 1999. John Hicks, 49, of Cincinnati, is scheduled to become the fifth Ohioan put to death for murdering someone from Hamilton County.

Hicks suffocated his 5-year-old stepdaughter, Brandy Green, according to court papers. Barring a last-minute stay, he will die by injection at Southern Ohio Correctional Facility near Lucasville shortly after 10 a.m. Tuesday.

We've published a couple of recent articles on Hicks' final appeal, but as times passes, Hicks just isn't getting the media attention the first Death Row "volunteer" - Wilford Berry - got in 1999, or a pair of remorseless killers - John W. Byrd and Alton Coleman - got in 2002. Even William G. Zuern rated front-page coverage last year as the killer of a Hamilton County sheriff's deputy. "It's sad when society becomes sort of numbed that there are killings going on in its name," said Sister Alice Gerdeman, chairwoman of Ohioans to Stop Executions and coordinator of the Intercommunity Justice and Peace Center in Over-the-Rhine. "That's what disturbs me," Gerdeman said. "If a society decides that they are going to allow execution, society should have to know when that is being done in their name."

Hicks nearly attracted national headlines, according to Gerdeman. That's because he briefly was in the running to become the 1,000th killer in modern U.S. history to be executed. After court stays were granted for other killers on Death Row, including John Spirko of Van Wert County, Hicks "will probably be the 998th or 999th person in the nation," Gerdeman said.

Mark Weaver, former deputy attorney general, wants Hicks executed, but is equally troubled by the lack of publicity about him. "It's a tragedy in itself that a case like John Hicks doesn't receive coverage that some of the earliest capital cases received," he said.

For instance, Berry was executed for shooting his employer, a Cleveland baker, during a robbery. "But his crime was nowhere near as heinous as John Hicks,'" according to Weaver. "I was involved with dozens of death penalty cases when I was deputy attorney general and the John Hicks case sticks with me 10 years later. ... This is evil, pure and simple. And it deserves front-page coverage." After strangling his mother-in-law, Maxine Armstrong, for $300 in drug money, Hicks left her Cincinnati apartment, then returned to kill his 5-year-old stepdaughter, Brandy Green, fearing she would testify against him, according to court papers. Hicks tried to smother her with a pillow. When that didn't work, Hicks tried to choke her and then placed duct tape over her nose and mouth, according to the trial transcript.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said there is still plenty of media attention to higher-profile murder cases as well as the debate over capital punishment. Executions also continued to get steady attention through books, television and movies, he said. That's little solace to activists like Gerdeman. "It saddens me," she said of Hicks. "Nobody should go unmourned. It doesn't matter who they are. They have been part of society and we need to know that."

CNN Law Center

"999 executions, and counting." (Novcember 29, 2005)

LUCASVILLE, Ohio (AP) -- Ohio carried out the nation's 999th execution since 1977 on Tuesday, putting to death a man who strangled his mother-in-law while high on cocaine and later killed his 5-year-old stepdaughter to cover up the crime. John Hicks, 49, was put to death a day after Eric Nance was executed in Arkansas for killing a teenager by slashing her throat with a box cutter. The 1,000th execution since the death penalty was reinstated is likely to come as soon as Wednesday, when Robin Lovitt is set to die in Virginia for fatally stabbing a man with scissors during a pool hall robbery.

On Monday, Gov. Bob Taft had refused to commute Hicks' sentence from death to life in prison, said Andrea Dean, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Hicks offered a tearful apology for the 1985 murders in an interview earlier this month with Ohio Parole Board members, and said he loved both victims -- 56-year-old Maxine Armstrong and 5-year-old Brandy Green. He detailed the killings and said his cocaine high made him desperate and paranoid.

Hicks had traded his VCR for about $50 worth of cocaine, court records show. After taking the drugs, he realized that he needed to get the VCR back before his wife wondered where it was, so he decided to steal money from Armstrong. Hicks found his stepdaughter asleep on the couch at Armstrong's apartment. He woke her and brought her to bed and then strangled Armstrong, first with his hands and then with a clothesline. He left her apartment with about $300 and some credit cards. He used some of the money to buy back his VCR and purchase more cocaine. Realizing Green could identify him as the last person at the apartment, he returned and attempted to suffocate the 5-year-old with a pillow then strangle her with his hands. She struggled, and Hicks covered her mouth and nose with duct tape. He left Cincinnati, but turned himself in to police in Knoxville, Tennessee.

Hicks was the fourth person executed in Ohio this year and the 19th since the state resumed executions in 1999.

Cincinnati Enquirer

"Brother pleads for killer's life," by Jon Craig. (Wednesday, November 9, 2005)

COLUMBUS - With John Hicks' scheduled execution 20 days away, his younger brother pleaded Tuesday for state officials to spare the convicted killer's life. Hicks' sister-in-law, in an equally passionate plea to the Ohio Parole Board, asked that Hicks die by lethal injection Nov. 29. While the two relatives sought different outcomes, it's up to the nine-member parole board to recommend to Gov. Bob Taft whether Hicks lives or dies.

John Hicks was found guilty of strangling his 5-year-old stepdaughter, Brandy Green, in August 1985. He's also serving a life sentence for murdering his 56-year-old mother-in-law, Maxine Armstrong, while robbing her to buy crack cocaine.

"Have mercy on my brother," said Ricardo Hicks, 42, of Toledo. "I know what he did was horrible ... I know my brother wouldn't have done this crime if he hadn't been addicted to drugs."

But Pamara Y. Hughes of Cincinnati pleaded that her brother-in-law be executed for killing her mother and niece. "Why he would kill two of our family members who cared for him ... we have tried for 20 years to understand," Hughes said. "Mr. Hicks has lived for 20 years longer than he allowed my mother and my niece to live. Brandy would be 25 years old now. "Carrying out the death penalty will not bring back my mom and Brandy, but it will close a 20-year chapter in our lives," she said. "We will never forget them, but we will not have to think of the person that took their lives."

Defense attorneys played a videotaped interview from an expert on drug addiction. Dr. Theodore Parran of Case Western Medical School said Hicks, now 49, suffered a drug-induced psychosis. His acts could appear deliberate to a jury, but Hicks did not know what he was doing, Parran said. "I've seen people in the midst of cocaine psychosis sell their children," Parran said. "This is an absolute textbook example of the horrendous consequences of cocaine psychosis."

But Ron Springman, Hamilton County assistant prosecuting attorney, and Chuck Wille, principal assistant attorney general, said Hicks' deliberate use of string to strangle the victims and his forethought to bring duct tape to the crime scene to suffocate Brandy proves premeditation.

Hicks would be the 19th Ohio killer put to death since the state resumed executions in 1999, and the fifth from Hamilton County. The parole board will make its recommendation to Taft on Tuesday.

ProDeathPenalty.Com

On 8/2/85, John Hicks murdered his 5-year-old stepdaughter, Brandy Green, and his 56-year-old mother-in-law, Maxine Armstrong, in Maxine's Cincinnati apartment. Earlier that day, Hicks had pawned his VCR for $50 to buy cocaine with. After getting high, Hicks realized he needed to retrieve the VCR before his wife realized it was missing, so he decided to steal the money from his wife's mother. He woke Brandy from where she was sleeping on the couch and took her to her bed. After putting Brandy to bed, Hicks strangled Maxine with his hands and then a clothesline and stole $300 to retrieve the VCR and buy more cocaine. When Hicks realized that Brandy could identify him as the last person with Maxine Armstrong, he returned to the apartment, tried to smother Brandy with a pillow, choked her with his hands and then taped her mouth and nose with duct tape, while she was still breathing. Hicks surrendered to police in Knoxville, Tennessee, where he confessed to them and later confessed to Cincinnati detectives. Hicks was sentenced to death for the murder of Brandy.

National Coalition to Abolish the Death Penalty

Do Not Execute John R. Hicks!

OHIO - John R. Hicks - November 29, 2005

John R. Hicks faces execution on Nov. 29, 2005 for the death of his stepdaughter, Brandy Green, a five-year-old black girl, early on Aug. 3, 1985.

Hicks received a sentence for 30 years in prison without parole for the related death of his mother-in-law, Maxine Armstrong, a black woman late on the evening of Aug. 2, 1985. After dropping his stepdaughter off at her maternal grandmother’s apartment, Hicks spent all of the money he had on cocaine and alcohol. He returned home to get a VCR that he then used to buy cocaine. Fearing his wife Ghitana Hicks’ reaction to the missing VCR, John Hicks decided to rob his mother-in law. During the robbery Hicks reportedly strangled her. Hicks then left the apartment to consume more cocaine and to retrieve the VCR. Realizing that his stepdaughter could place him at the scene of Armstrong’s murder, Hicks returned to the scene and suffocated Brandy Green with a pillow.

Although Hicks admitted to these crimes there are many problems with his case that suggest that the death penalty is not appropriate for Hicks. For example, although according to Ohio law voluntary intoxication may be considered a mitigating factor in determining intentionality or premeditation, the jury hearing Hicks’ case was not made aware of this fact. The cocaine and alcohol consumed by Hicks near the time of the murders clearly suggest that he was not in control of his actions.

Also, an expert who had examined Hicks to determine whether he was competent to stand trial testified that Hicks suffered from a psychotic decomposition and that he should be put under observation in a psychiatric facility to determine competence to stand trial. The trial court decided to favor other expert opinions instead, therefore ruling that Hicks was competent to stand trial.

Another major problem with Hicks’ sentence is that the jury was told that the final decision about whether to impose a death sentence rested with the judge. Such instruction may suggest to the jury that it is okay to vote for the death penalty even if they have doubts because the verdict will be reviewed. Such a statement has clear implications to the jury’s decision. Although the Court of Appeals of Ohio overruled this error, the Court of Appeals did admit that by overruling the claim of error they did not endorse “the perpetuation of a practice that has fallen into disfavor in this state.” The Court of Appeals admits that the trial court erred and yet overruled the claim of error by the defendant in his appeal. This decision raises many issues. Particularly, the fact that allowing the death sentence to move forward in such a case suggests to lower courts that such statements to the jury are acceptable.

Furthermore, in deciding whether the death penalty was appropriate in Hicks’ case, the Court of Appeals of Ohio compared his case only to other cases reviewed by the Court of Appeals of Ohio in which the death penalty was imposed. This eliminates comparison with cases in which the death penalty was sought and not imposed or cases in which the death penalty was not sought. Considering the arbitrary nature of the death penalty it is important for the appellate court to review cases in which a similar defendant was not sentenced to death. The fact that the court in this case did not consider such comparisons presents a grave error.

Hicks was under the influence of both alcohol and cocaine at the time of the murders. He has expressed his sorrow for the crimes and for the suffering family. Considering the numerous problems with Hicks’ trial, his cooperation with authorities throughout proceedings, his questionable mental competence to stand trial and his remorse it is clear that this is not a case that warrants a death sentence.

Please write Gov. Taft requesting that he commute John R. Hicks’ sentence.

Ohioans to Stop Executions

Wikipedia

John R. Hicks (born July 31, 1956 in Cincinnati, Ohio; died November 29, 2005 in Lucasville, Ohio) was a murderer executed by the U.S. state of Ohio. He was executed for the August 3, 1985 murder of his five-year-old stepdaughter, Brandy Green. He was also convicted of the murder of his mother-in-law, Maxine Armstrong, for which he received a life sentence.

Crime

Hicks was a cocaine and alcohol addict. He had purchased some cocaine around 4pm on August 2, 1985, but felt a further craving, so he took the VCR from his own home as security for a $50 purchase. He did not have the cash to redeem the VCR and so he knew his wife would become angry when she found out what he had done. It was then that he decided to rob and murder Armstrong.

He telephoned Armstrong to say he was coming around. When he arrived around 11pm he put his stepdaughter to bed. He then approached Armstrong from behind and strangled her with his own hands. To make sure she was really dead he used a length of clothesline. He searched her bedroom and stole $300 and some credit cards.

After buying more cocaine, he realized his stepdaughter would place him at the scene of the crime and could be a potential witness. He returned and smothered her with a pillow. When this failed to kill his stepdaughter, he tried to use his own hands, and then duct taped her mouth and nose. He attempted to dismember Armstrong in the bathtub, but gave up after nearly cutting one of her legs off. Returning to the body of Brandy Green, he removed her underpants and penetrated her with his finger. His last actions in the apartment were to steal a checkbook, a ring, a .32 caliber pistol, and a box of ammunition. After returing to his apartment around 3am, he fled from Cincinnati at 6am. He would be later arrested in Knoxville, Tennessee on August 4.

Trial and appeals

He was convicted of the aggravated murder of Maxine Armstrong while committing robbery for which he received a life sentence to be served concurrently with a 10 to 25 year sentence for aggravated robbery. In the murder of his five-year-old stepdaughter, Brandy Green, Hicks was convicted of aggravated murder to escape detention and purposeful killing of more than two people. For this he received a death sentence. He was sentenced to death on March 3, 1986 for the aggravated murder of Brandy Green.

Hicks's lawyers have argued that under Ohio law, voluntary intoxication may be considered a mitigating factor in capital cases. They say that the jury was not instructed of this fact. In their report, the parole board wrote that although he was intoxicated, the "merciless death" of Brandy was premeditated.

The jury were also told that the final decision of whether to impose a death sentence rested with the trial judge. They say that this may have lead some jurors to vote for the death penalty, even though they had doubts about its appropriateness for the case. The Court of Appeals of Ohio overturned the later grounds for appeal. They did state in their opinion that they did not endorse "the perpetuation of a practice that has fallen into disfavor in this state."

Dr. Theodore Parran of the Case Western School of Medicine diagonised Hicks with a psychotic decomposition and recommended that he be placed into a psychiatric facility for observation. Parran said that although the actions of Hicks appeared deliberate, he did not know what he was doing.

The 9 member Ohio Parole Board recommended unanimously on 15 November 2005 that Governor Bob Taft deny clemency for Hicks. At the hearing, his brother plead for Hicks's life to be spared, while his sister-in-law argued that Hicks should be executed for his crimes.

Execution

He was pronounced dead at 10:20 am on November 29, 2005, after being executed by lethal injection at the Southern Ohio Correctional Facility in Lucasville, Ohio. Ask for a final statement by the warden he said: "It begun with a syringe in my arm and it ends with a needle in my arm. It’s come full circle. I realize that. … I know this may be shallow or hollow words to y’all but it’s coming from my heart." After the drugs began to flow, he said "Whoa. Hallelujah", laughed loudly and then said "Yes. Thank you."

Ohio News Network

"Hicks Executed for Murder." (Nov 29, 2005, 10:33 AM EST)

Ohio executed the nation's 999th person Tuesday, putting to death a man who was high on cocaine when he strangled his mother-in-law to steal her money to buy his VCR back from his dealer. John Hicks returned the next day and suffocated his 5-year-old stepdaughter with duct tape over her mouth and nose, so she couldn't tell police he had been at the mother-in-law's Cincinnati apartment.

Hicks, 49, died by injection at 10:20 a.m. at the Southern Ohio Correctional Facility, setting up the likely 1,000 execution since the United States widely resumed executions in 1977. Robin Lovitt is scheduled to be executed Wednesday in Virginia for stabbing to death a pool hall manager with a pair of scissors.

Hicks, who turned himself in to police after the 1985 murders, tried to avoid the death penalty by arguing that his cocaine use made him lose control.

Ohio Adult Parole Authority

DATE PUBLISHED: November 15, 2005
IN RE: JOHN R. HICKS, MANCI #189-423
STATE OF OHIO ADULT PAROLE AUTHORITY
COLUMBUS, OHIO

Date of Meeting: November 8, 2005
Minutes of the SPECIAL MEETING of the Adult Parole Authority held at 1030 Alum Creek Drive, Columbus, Ohio 43205 on the above date.

John R. Hicks Clemency Report

IN RE: JOHN R. HICKS, MANCI #189-423
SUBJECT: Death Sentence Clemency

CRIME, CONVICTION: Aggravated Murder with Specifications cs/w Aggravated Robbery cs/w Aggravated Murder with Specifications

DATE, PLACE OF CRIME: August 2, 1985-Cincinnati, Ohio

COUNTY: Hamilton

CASE NUMBER: B852809

VICTIMS (S): Maxine Armstrong, Age 56; Brandy Green, Age 5

INDICTMENT: 8/29/1985: Count 1: Aggravated Murder with Specifications; Specification #1 - While ommitting Aggravated Robbery; Specification #2 - Purposeful Killing of 2 or more persons; Count 2: ggravated Robbery, Count 3: Aggravated Murder with Specifications; Specification #1 - Committed for purpose of Escaping detention; Specification #2 - Purposeful killing of 2 or more persons.

VERDICT: Found Guilty by Jury as charged in Counts 1-3.

SENTENCE: 2/21/1986: Count 1: Life consecutive with Count 2; Count 2: 10-25 years consecutive with Counts 1&3; Count 3: Death

ADMITTED TO INSTITUTION: March 3, 1986
CURENT AGE: 49 years old
DATE OF BIRTH: July 31, 1956
PRESIDING JUDGE: Honorable Simon Leis, Jr.
PROSECUTING ATTORNEY: Arthur M. Ney, Jr.

FOREWORD:
Clemency in the case of John R. Hicks #A189-423 was initiated by the Honorable Bob Taft, Governor of the State of Ohio, and the Ohio Parole Board, pursuant to Sections 2967.03 and 2967.07 of the Ohio Revised Code and Parole Board Policy #105-PBD-05. A prior Clemency Report was submitted to the Honorable George V. Voinovich on May 20, 1996. That report contained a unanimous Parole Board recommendation for denial of clemency.

On November 1, 2005, Parole Board Member Betty Mitchell interviewed Mr. Hicks at the Mansfield Correctional Institution in the presence of his counsel, Marc D. Mezibov. The Clemency Hearing was then held on November 8, 2005. Mr. Hicks was represented by Marc D. Mezibov who presented the application for and testimony in support of clemency. Mr. Mezibov also submitted videotaped testimony of Theodore V. Parran Jr. M.D. Dr Parran is the Director of the Clinical Science Program and Director of the Fellowship Program for the Case Western Reserve University School of Medicine. Ricardo Hicks, the applicant’s brother also presented testimony in support of clemency.

Arguments in opposition to clemency were presented by Hamilton County Assistant Prosecutor, Ronald Springman, Principal Assistant Attorney General Charles Wille, and Pamela Hughes who is the eldest daughter of victim Maxine Armstrong and the aunt of the 5 year old victim Brandy Green.

The Parole Board considered all of the testimony provided by the applicant, the information disseminated by presenters at the hearing, prior investigative findings as well as judicial decisions. With these, the Board deliberated upon the propriety of clemency in this case. With eight members participating, the Board came to unanimous agreement and voted to provide an UNFAVORABLE recommendation for clemency to the Honorable Bob Taft, Governor of the State of Ohio.

DETAILS OF THE INSTANT OFFENSE:
The following account of the instant offense was obtained from the Ohio Supreme Court opinion decided May 17, 1989:

On August 2, 1985, Ghitana Hicks brought her five-year-old daughter, Brandy Green, to spend the night with Ghitana’s mother, Maxine Armstrong. Armstrong lived at the Alms Hill Apartments in Cincinnati, Ohio. At about 10:45 p.m., Brandy fell asleep on her grandmother’s couch.

The next day, Armstrong’s sister entered the apartment and found Brandy, her mouth and nose covered with tape, lying dead in a bedroom. The sister searched the apartment and found Armstrong’s body in the bathtub. The police were summoned. The coroner determined that Brandy had been smothered and that Armstrong had died of ligature strangulation.

On August 4, 1985, Brandy’s stepfather, the subject, John R. Hicks, surrendered to police in Knoxville, Tennessee. There, Hicks confessed that he had murdered Armstrong and Brandy in Cincinnati. On August 5, 1985, he was returned to Cincinnati, where he made further statements to Cincinnati homicide detectives Robert Hennekes and Joe Hoffmann. Subject told Knoxville detective Thomas Stiles that “just a couple of hours” before going to Armstrong’s apartment, he bought some cocaine from a man named “Ray” in Walnut Hills. However, he told the Cincinnati detectives that he got the cocaine at about 4:00 p.m. from someone known as “G Man.” Later that day, at an unspecified time, Hicks felt a renewed craving for cocaine. He took a videocassette recorder (VCR) from his home and gave it to Ray as security for a fifty-dollar cocaine purchase. However, Hicks had no money with which to redeem the VCR. He realized that failure to get it back would cause trouble with Ghitana. Hicks decided to rob Armstrong, knowing that “if [he] robbed her he would have to kill her.”

Subject telephoned Armstrong to tell her he would “stop in.” When he arrived, he found Brandy asleep on the couch, woke her, and put her to bed. He took some time to build his courage. At about 11:00 p.m., Hicks said to himself: “Either you go do it or you don’t.” He came up behind Armstrong as she stood over a birdcage and choked her with his hands. He then tried to smother her with a pillow, but doubted whether she had stopped breathing. To “make sure she was dead,” he strangled her with a length of clothes line he had brought with him from his car. He then searched the bedroom, stealing approximately $300 and some credit cards.

Hicks went back to Walnut Hills, redeemed the VCR from Ray, and made another fiftydollar cocaine purchase. At 12:30 a.m., after injecting the cocaine, subject “got to thinking again.” Knowing that Brandy could identify him as the last person to visit the Armstrong apartment that night, Hicks decided to go back and kill her. Hicks returned and tried to smother Brandy with a pillow. Because she was “bucking” and “fighting,” he decided that the pillow “wasn’t doing the work.” He tried to choke her with his hands. She continued to make gurgling sounds, so he taped her breathing passages shut with duct tape he had brought with him.

After killing Brandy, subject moved Armstrong’s body to the bathroom. Intending to dismember the body for easier disposal, he nearly cut her leg off before abandoning the effort. He then returned to the bedroom, where he took off Brandy’s underpants and inserted his finger into her vagina. He searched the apartment again, finding and taking a checkbook, a ring, a .32 caliber pistol, and a box of ammunition. At 3:00 a.m., he returned to his apartment. At 6:00 a.m., he fled Cincinnati.

APPLICANT’S STATEMENT:
Mr. Hicks was interviewed by Board Member Betty Mitchell on November 1, 2005 at the Mansfield Correctional Institution. Also present were Mr. Hicks’ counsel, Marc D. Mezibov, and Parole Board Parole Officer Ted Morrison. The interview was witnessed via teleconference at the Department of Rehabilitation and Correction’s Central Office in Columbus by Public Defender John Lee, Assistant Attorney Generals Heather Gosselin, Chuck Wille and Steve Maher, Hamilton County Assistant Prosecutor Ronald Springman, and Parole Board Quality Assurance Analyst Stephanie Starr.

During the interview, Mr. Hicks reiterated the details of the crime and voiced statements of remorse, as the victims trusted him as a friend and as a stepfather. He shed tears as he discussed the closeness of his relationship with them. He blamed cocaine abuse as the culprit in his crime and stated that if it were not for cocaine he would not be incarcerated today. There were tears shed for the victims as he voiced remorse. He provided a detailed report of his crimes just as he had previously. He admitted that he killed the victims, but attributes his actions to his abuse of cocaine.

PRIOR RECORD:
JUVENILE: The subject has no known juvenile arrest record.
ADULT: The subject has the following known adult arrest record:

7/11/1983 Assault Cincinnati, Ohio 7/18/83: 60 days jail (Age 26) (50 days suspended); placed on 1 year probation; 7/17/84: Probation terminated. Details: This offense involved the subject striking an ex-girlfriend Brenda Davis – stating he struck her several times following an argument while both of them were abusing alcoholic beverages.

8/2/1985 Aggravated Murder Cincinnati, Ohio INSTANT OFFENSE (Age 29) Aggravated Robbery Aggravated Murder.

INSTITUTIONAL ADJUSTMENT:
A review of his institution files, reveal ongoing acceptable performance in job assignments. These have varied from Porter to Unit Librarian. He attended AA in 1988 and has committed no significant rule infractions to warrant isolation from his usual housing site. Overall his pattern of adjustment to the institution appears satisfactory.

COUNSEL’S ARGUMENT FOR CLEMENCY:
In his opening statements Attorney Marc Mezibov acknowledged this to be a horrible crime, one which John Hicks confessed to within 48 hours of committing the crime after turning himself in to police in Knoxville, Tennessee. John Hicks admits his responsibility for the death of these two individuals. During his interview at Mansfield Correctional Institution he continued this admission of guilt. The basis for the clemency request centers exclusively on mercy and fairness. He is seeking clemency for the capital murder of Brandy Green. Attorney Mezibov’s contentions are these:

• The jury did not meaningfully consider Mr. Hicks’ lack of moral culpability for his actions due to the gross incompetence and ineffectiveness of his trial counsel.

• That Mr. Hicks’ mental processes were severely impaired from the effects of cocaine when he committed the crime. There is, however, no contention that he is now or was mentally ill at the time he committed these crimes.

• That Mr. Hicks’ trial counsel failed to obtain an expert on cocaine to explain the pharmacological, physiological and psychological effects upon the body so that jurors could fairly appreciate and appropriately measure the level of Mr. Hicks’ moral culpability.

• That Mr. Hicks’ trial counsel erred by utilizing the court appointed psychologist who was originally obtained to assess competency and insanity. He characterized the testimony of Dr. Schmidtgossling as not only inadequate and uninformed but also inaccurate.

• That information concerning the social and psychiatric history was not included. Suggestions of learning disability were not explored and family dysfunctions were not disclosed satisfactorily as mitigation. The allegation of sexual molestation by an older cousin was not disclosed and this he believed to be a significant omission. Testimony was then provided by Dr. Theodore V. Parran Jr. via videotape. Dr Parran is the Director of the Clinical Science Program and Director of the Fellowship Program for the Case Western Reserve University School of Medicine. Dr. Parran suggested that Mr. Hicks had a pattern of binge behavior in which paranoid ideation and “schizophrenic-like” manifestations occur during the period that follows an acute intoxication phase of cocaine use. During that phase, the uncharacteristic behavior that can occur is more likely to be of the criminal amplitude of that exhibited by Mr. Hicks. Though he did not interview Mr. Hicks at the time of the crime, he reviewed the files and assessed the applicant’s reported memories of the events surrounding his murdering both victims. Though Mr. Hicks has had a significant reported addiction, there had been a 6 month period of cessation of drug use that he believed might have heightened this reaction which he described as cocaine psychosis.

Ricardo Hicks, the applicant’s brother, also provided testimony to indicate that the conduct of his brother was unusual and could only be attributed to his cocaine abuse. He indicated his on-going support for his brother.

OPPONENTS TO CLEMENCY:
Assistant Hamilton County Prosecutor Springman first attested to the credibility of Dr. Schmittgosseling and noted that Hicks was reported to be rational, oriented and goal directed when assessed. Dr. Parren characterized Hicks as being able to “put actions together in a straight line and hypothesized that he was likely to have been experiencing cocaine psychosis. Mr. Springmen said “Hicks is asking for mercy but he gave no mercy to the victims.” Prosecutors noted that:

• John Hicks referred to his 5-year-old stepdaughter Brandy as his daughter. He claimed to have the same birthday. On the date of the crime she had been shopping for a parakeet for her birthday. He used the day to go to the Alms Hotel to buy $50 in cocaine.

• He sold Maxine’s VCR for $50 more in cocaine and later grabbed Maxine from behind and choked her while she was looking at the bird. He used a cord to stop the gurgling sounds and left her on the floor while Brandy lay asleep in the bedroom.

• He paid to get the VCR back with money he robbed from Maxine. He did not want his wife to know he had taken it.

• He thought he had to “take care of” Brandy because she knew he was at her grandmother’s (Maxine) apartment.

• He put a pillow over Brandy’s face to smother her but she started “Bucking and kicking”. He put his hand on her windpipe but remembered the gurgling sound Maxine had made when he choked her. He then used the duct tape he had brought with him.

• He told police that he had digitally penetrated Brandy’s vagina in order to make it appear as if it were a sex crime.

• He decided to cover up the crime by cutting up the body of Maxine Armstrong but abandoned the idea when he thought it was going to take too long.

• He had sex with his wife and thinks “I gotta get out of here” and has the presence of mind to return to the victim’s apartment to take a gun, ammunition and credit cards before leaving town. He took his wife’s car and left.

Assistant Attorney General Wille noted that the argument for cocaine psychosis was indeed argued to Federal courts, as well as State courts and was denied. The Jury heard a description of Mr. Hicks’ behavior and premeditation in the death of Brandy. Voluntary intoxication is not relevant unless it destroys the ability to act and is not mental disease or defect. Dr. Schmidtgossling noted that he had the ability to act purposefully and did.

No expert examination of the mental state of Mr. Hicks was presented as a singular glaring failure by the defense counsel. In videotaped testimony, Dr. Theodore Parran described cocaine psychosis and opinioned that the description of Mr. Hick’s thoughts and behaviors on the day of the murders was consistent with what he believed to be cocaine psychosis. The interview with Mr. Hicks and the evaluation of the events together with the review of Hicks’ behavior occurred years after the crimes occurred. Thus it represents an expert opinion or supposition rather than a diagnosis.

The victim’s survivors in this case were represented by Pamela Hughes. Ms. Hughes is the eldest child of Maxine Armstrong and the aunt of Brandy Green. She spoke eloquently though succinctly about the betrayal of trust and the feelings of guilt associated with having welcomed Hicks into their family. Ms. Hughes brought with her the message from her Grandmother that she has been waiting to see justice done. Though it may not bring them peace, the death of John Hicks will close this chapter in their lives.

CONCLUSION:
The Parole Board discussed the issue of mitigation and could concede the following as mitigation:

• That Mr. Hicks experienced a dysfunctional home environment during his formative years, which were plagued by alcoholism, familial discord and the self reported sexual abuse by a cousin.

• That Mr. Hicks’ significant use of drugs on August 2, 1985 did affect his judgment though it did not deter his ability to act purposefully and with premeditation in carrying out the merciless death of Brandy Green.

• The board stopped short of accepting any causal relationship between his drug use and two entirely unprovoked attacks which resulted in two needless deaths. Psychosis (a mental disorder) was not diagnosed at the time of the crimes. Hicks was found to have no mental illness. The collection of physical manifestations, which followed the period of intoxication, might not have been severe enough to rise to the level of warranting the diagnosis of “cocaine psychosis”. Self report and hind sight can only generate speculation.

• That Mr. Hicks has a pattern of good institutional adjustment throughout his incarceration. The Board deliberated upon these issues in mitigation and compared them with the brutality inherent in strangulation and asphyxiation. The board considered the magnitude of the violations of trust embedded in the killing of “loved ones”. Mr. Hicks shed a tear as he talked about the fact that they were his friends. He treated Brandy like a daughter. He was a friend to his mother-in-law. His sister in law, Ms. Hughes said, “We trusted him.”

There is no manifest injustice in carrying out the lawful sentence of death. The mitigating factors are far out weighted by the aggravating factors.

RECOMMENDATION:
The Ohio Parole Board, with eight (8) members participating, voted unanimously to provide an UNFAVORABLE recommendation for any form of executive clemency for JOHN R. HICKS to the Honorable Bob Taft, Governor of the State of Ohio.

Ohio Attorney General

John R. Hicks Death Penalty Appeals

County of Conviction: Hamilton

Summary of Crime:
On 5/17/89, the Ohio Supreme Court affirmed Hicks' conviction and death sentence on direct appeal. On 4/17/01,the federal district court denied Hicks' petition for a writ of habeas corpus. On 9/15/04, the 6th Circuit affirmed the district court's denial of Hicks' petition for a writ of habeas corpus. On 12/7/04, the 6th Circuit denied Hicks' petition for rehearing en banc. On 12/30/04, the 6th Circuit granted Hicks' motion to stay the mandate pending the filing of a petition for a writ of certiorari in the U.S. Supreme Court.

Ohio / State Procedural History

ORIGINAL TRIAL
Indictment: 8/29/1985
Sentence: 2/21/1986

FIRST REVIEW OF ORIGINAL TRIAL
(Direct Appeal)
Court of Appeals Decision: 4/6/1988
Supreme Court Decision: 5/17/1989
First U.S. Supreme Court Review:3/19/1990

SECOND REVIEW OF ORIGINAL TRIAL
(Post-Conviction Action)

Filed in Trial Court: 11/16/1990
Trial Court Decision: 4/3/1991
Court of Appeals Decision: 1/29/1993
Supreme Court Decision: 7/21/1993

RE-EXAMINE FIRST REVIEW/ORIGINAL TRIAL

Court of Appeals Decision: 12/1/1992
Supreme Court Decision: 10/27/1993
U.S. / Federal Procedural History

REQUEST WRIT OF HABEAS CORPUS

U.S. District Court in Cincinnati
Judge: Weber
Prisoner's Notice of Intent: 3/7/1994
Prisoner's Petition: 3/10/1994
State's Return of Writ: 8/25/1994
Prisoner's Traverse:
Evidentiary Hearing: 3/3/1997
District Court Decision: 4/17/2001

REVIEW OF HABEAS CORPUS DECISION
U.S. 6th Circuit Court of Appeals

Notice of Appeal: 7/12/2001
Prisoner's Final Brief: 6/19/2003
State's Final Brief: 6/19/2003
Oral Argument: 3/9/2004
Court of Appeals Decision: 9/15/2004

THIRD U.S. SUPREME COURT REVIEW
Supreme Court Decision:

As Of: 12/31/2004

Status In State Courts: No proceedings currently pending in state court.
Status In Federal Courts: Case is currently pending the filing of a petition for a writ of certiorari in the U.S. Supreme Court.

Casenotes:
On 5/17/89, the Ohio Supreme Court affirmed Hicks' conviction and death sentence on direct appeal. On 4/17/01, the federal district court denied Hicks' petition for a writ of habeas corpus. On 9/15/04, the 6th Circuit affirmed the district court's denial of Hicks' petition for a writ of habeas corpus. On 12/7/04, the 6th Circuit denied Hicks' petition for rehearing en banc. On 12/30/04, the 6th Circuit granted Hicks' motion to stay the mandate pending the filing of a petition for a writ of certiorari in the U.S. Supreme Court.

Days Since Death Penalty Imposed: 6888 (As of 12/31/04)

State v. Hicks, Not Reported in N.E.2d, 1988 WL 37142 (Ohio 1988). (Direct Appeal)

SHANNON, Judge.
The defendant-appellant, John R. Hicks, was charged in a three-count indictment with the aggravated murder of Maxine Armstrong, the aggravated robbery of Maxine Armstrong, and the aggravated murder of Brandy Green. The two counts of aggravated murder were accompanied by death-penalty specifications. The first of the two specifications involved in the Maxine Armstrong homicide alleged that Hicks committed the aggravated murder as the principal offender while he was also committing aggravated robbery. The second specification alleged that the Armstrong murder was part of a course of conduct involving the purposeful killing of two or more persons.

The first specification in the Brandy Green homicide, which was said to involve a purposeful act committed with prior calculation and design, alleged that Hicks killed Green to escape detection, apprehension, trial or punishment for the aggravated murder of Maxine Armstrong. In the second specification to this count, it was alleged that the Green murder was also part of a course of conduct involving the purposeful killing of two or more persons. Hicks pleaded not guilty and not guilty by reason of insanity, and the counsel appointed to defend him filed a suggestion of incompetence to stand trial. The court conducted an evidentiary hearing at which testimony was received from the experts appointed to examine Hicks to determine his mental state. Although there was some conflict in the testimony, the court found Hicks competent to stand trial on December 10, 1985.

Selection of the jury commenced on February 3, 1986, and was completed on February 6, when the trial itself commenced. On February 12, 1986, Hicks was found guilty as he stood charged in all the counts and specifications of the indictment. The penalty phase of the trial commenced on February 14, 1986, and the jury found, with respect to the first count, that the aggravating circumstances were not sufficient to outweigh the mitigating factors and recommended a sentence of imprisonment for thirty years without parole. With respect to the third count, the jury found that the aggravating circumstances were sufficient to outweigh the mitigating factors and recommended the sentence of death.

Resultantly, on February 21, 1986, the court ordered Hicks to be put to death on the third count, viz., the murder of Brandy Green, to serve a life sentence involving at least thirty full years without parole on the first count, viz., the murder of Maxine Armstrong, and to be imprisoned for ten to twenty-five years on the second count, viz., the aggravated robbery of Maxine Armstrong.

In the review of a death penalty under R.C. 2929.05, we have three tasks. First, we must address the assignments of error presented by the appellant. Second, we must independently determine whether the aggravating circumstances of the homicide in question outweigh the factors presented in mitigation of punishment. Third, we must determine whether the sentence of death is appropriate, after considering whether it is excessive or disproportionate to the penalty imposed in similar cases. Having studied the death-penalty cases in this jurisdiction as the law requires, and having reviewed the record certified to us by the trial court, we find no prejudicial error in this appeal and overrule all nine assignments of error before us, we are persuaded that the aggravating circumstances of Brandy Green's homicide outweigh the mitigating factors and we decide that the sentence of death imposed below is appropriate. The facts surrounding the commission of the crimes recited in the indictment are virtually undisputed.

On August 2, 1985, defendant-appellant Hicks was twenty-nine years of age, worked as a boiler operator in the power plant of a public high school in Cincinnati, Ohio, was married to one Ghitana Hicks and lived with Ghitana and her five-year-old daughter, Brandy Green. On that day, Hicks received his paycheck for $498.00, visited a bank to deposit $350.00 of that sum, gave some part of the balance to his wife as household money and took Brandy to the apartment occupied by the child's maternal grandmother, Maxine Armstrong, to spend the night while Ghitana was at work.

Maxine Armstrong lived in an apartment building located within Cincinnati, and after leaving Brandy in her grandmother's care, Hicks left to visit a bar for the purpose of purchasing cocaine for his personal use. He spent all the money in his possession for cocaine and beer. Because he desired more cocaine, Hicks returned to his home and took from it his wife's videocassette recorder (VCR) to exchange for more drugs from his supplier. That purpose was accomplished, but then Hicks became apprehensive about the reaction Ghitana would have when she discovered the loss of her VCR. Hicks knew that Maxine Armstrong on occasion kept cash in her apartment and conceived the scheme to rob her so that he could obtain money to redeem the VCR from the drug dealer.

Hicks revisited the apartment building at about 10:30 p.m., admitted himself with a key to a rear door, went to Maxine Armstrong's apartment and was admitted by her. Hicks carried Brandy into one of the bedrooms, where she went to sleep. He then approached Maxine from the rear and strangled her with a piece of rope he had brought with him. In his statement given to police, Hicks declared that he knew that if he robbed his mother-in-law he would have to kill her. Hicks then ransacked the apartment and took a sum of money estimated to be between two and three hundred dollars. After leaving the premises to consume more cocaine and to recover the VCR, he realized that his stepdaughter could incriminate him by placing him in the apartment near the time of Armstrong's death. He told police subsequently that he had to "go back there and take care of her."

Therefore, at a time between midnight and 1:00 a.m., August 3, 1986, Hicks returned to Maxine Armstrong's apartment. Brandy was asleep in her bed, and Hicks suffocated the child with a pillow, putting duct tape over her mouth and nostrils in the process because she was uttering sounds and struggling to breathe. He also violated the child sexually by digital manipulation of her genital parts before leaving her body in the bedroom. Then Hicks decided that the body of Maxine Armstrong would have to be removed from the apartment. He put the body in the bathtub and started to dismember it with a butcher knife so that it could be taken out, piece by piece, in garbage bags. However, after cutting one leg to the bone above the knee, Hicks abandoned the plan and left both of the bodies of his victims where they were in the apartment. At about 3:00 a.m., Hicks arrived at his home, returned the VCR to his wife and went to bed. At 6:00 a.m., he went again to Maxine Armstrong's apartment, took her checkbook and a handgun, and left Cincinnati in Ghitana's automobile. Relatives of Maxine Armstrong entered her apartment at about 10:30 a.m., found the bodies and summoned police.

Sometime in the early afternoon of August 3, Hicks reached Knoxville, Tennessee, and shortly thereafter surrendered himself to police in that city. Hicks gave the Knoxville police a detailed recitation, which was recorded, of all the events which had occurred on August 2 and 3 and, resultantly, the officers contacted police in Cincinnati, who, without delay, retrieved Hicks for prosecution of his crimes.

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The testimony of the three experts appointed to examine Hicks and to report their conclusions with respect to his mental state was, to some degree, conflicting. One declared without reservation that Hicks was competent to stand trial. A second agreed with that opinion of competency and added that she felt that Hicks's bellicosity and shifts of mood were feigned, and that he was malingering. The third expert was of the opinion that Hicks was suffering from a psychotic decompensation, that he should be put under observation in a psychiatric facility for observation to determine if he was psychotic and that he was not competent to stand trial.

Determination of the competency of an accused to stand trial is for the trier of fact, whose finding will not be disturbed when there is some reliable, credible evidence supporting it. In commenting upon this general proposition, the Ohio Supreme Court in State v. Williams (1986), 23 Ohio St.3d 16, 19, 490 N.E.2d 906, 916, declared that the adequacy of the data relied upon by an expert who has examined the accused is a question for the trier of fact. R.C. 2945.37(A) contains the presumption that a criminal defendant is competent and mandates that such presumption abides unless it is dispelled by a preponderance of the evidence in a hearing. [FN2]

Without question, the court was entitled to make its own assessment of the credibility of each expert's opinion and of the validity of its basis. There is sufficient testimony upon which the court could rely to support its conclusion that Hicks was competent to stand trial.

* * *

We now turn to the determination of whether the death penalty is appropriate in this case. We must consider "whether that sentence is excessive or disproportionate to the penalty imposed in similar cases." R.C. 2929.05(A).

Most recently, the Supreme Court of Ohio in disposing of State v. Steffen (1987), 31 Ohio St.3d 111, 123-4, 509 N.E.2d 383, 394-95, held: We take this opportunity to clarify the procedures which must be followed by this court and the court of appeals in conducting the statutorily required proportionality review. The statute itself does not describe the scope of this review. Since proportionality review is not constitutionally mandated, Pulley v. Harris (1984), 465 U.S. 37, this court is relatively free, within the confines of the statute, to determine the pool of cases to be used for comparison. Rogers, supra (17 Ohio St.3d 174), at 186, 17 OBR at 425, 478 N.E.2d at 996.

The purpose of proportionality review is to determine whether the penalty of death is unacceptable in the case under review because it is disproportionate to the punishment imposed on others convicted of the same crime. Pulley, supra, at 43. For the following reasons, we are persuaded that the proportionality review contemplated by R.C. 2929.05(A) should be limited to cases already decided by the reviewing court in which the death penalty has been imposed. Logic dictates that only those cases which result in conviction have any use in proportionality review, since only then will a penalty result with which the death sentence under review may be compared. It is equally logical that only convictions of a capital crime are relevant for comparison purposes, since such cases are necessarily so qualitatively different from all others that comparison with non-capital offenses would be a profitless exercise. In fact, R.C. 2929.05(A), in requiring proportionality review, limits the scope of such review to "similar" cases. We are further persuaded that a court cannot make a meaningful proportionality review unless the pool of cases is restricted to those which the reviewing court has itself decided. Comparison with cases not passed upon by the reviewing court would be unrealistic since the reviewing court could not possess the requisite familiarity with the particular circumstances of such cases so essential to a determination of appropriateness. See Rogers, supra (17 Ohio St.3d 174), at 186, 17 OBR at 425, 478 N.E.2d at 996.

We hold, therefore, that the proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed. Thus, a court of appeals need only compare the case before it with other cases actually passed on by that court to determine whether the death sentence is excessive or disproportionate. Similarly, proportionality review in this court will be limited to a review of cases we have already announced. No reviewing court need consider any case where the death penalty was sought but not obtained or where the death sentence could have been sought but was not.

Our review of the cases already decided by this Court in which the death penalty has been imposed leads us to conclude that the sentence of death imposed upon Hicks is neither excessive nor disproportionate to the penalty imposed in similar cases.

In conclusion, we find: (1) No merit in any of the nine assignments of error or any of the issues raised thereunder; (2) The aggravating circumstances of the aggravated murder of Brandy Green outweigh the mitigating factors presented by the appellant; and (3) The sentence of death is appropriate in this case because it is neither excessive nor disproportionate to the penalty imposed in similar cases. The judgment of the trial court and the sentences, including the sentence of death, are affirmed. KLUSMEIER, P.J., and HILDEBRANDT, J., concur.

State v. Hicks, 43 Ohio St.3d 72, 538 N.E.2d 1030 (Ohio 1989). (Direct Appeal)

Defendant was convicted in the Court of Common Pleas of Hamilton County of two counts of aggravated murder and aggravated robbery. Appeal was taken. The Court of Appeals affirmed. Appeal was taken as of right. The Supreme Court, Herbert R. Brown, J., held that: (1) defendant was not entitled to instruction on involuntary manslaughter as a lesser-included offense to aggravated murder; (2) defendant was not entitled to jury instruction on voluntary intoxication; and (3) sentence of death was appropriate. Affirmed. Wright, J., concurred in syllabus and judgment only.

The issue of intoxication is not raised as a defense to the element of purpose in a criminal prosecution merely because the evidence suggests reduced inhibitions, impaired judgment or blurred appreciation by the defendant of the consequences of his conduct.

On August 2, 1985, Ghitana Hicks brought her five-year-old daughter, Brandy Green, to spend the night with Ghitana's mother, Maxine Armstrong. Armstrong lived at the Alms Hill Apartments in Cincinnati, Ohio. At about 10:45 p.m., Brandy fell asleep on her grandmother's couch. The next day, Armstrong's sister entered the apartment and found Brandy, her mouth and nose covered with tape, lying dead in the bedroom. The sister searched the apartment and found Armstrong's body in the bathtub. The police were summoned. The coroner determined that Brandy had been smothered and that Armstrong had died of ligature strangulation.

On August 4, Brandy's stepfather, appellant, John R. Hicks, surrendered to police in Knoxville, Tennessee. There, appellant confessed that he had murdered Armstrong and Brandy in Cincinnati. On August 5, he was returned to Cincinnati, where he made further statements to Cincinnati homicide detectives Robert Hennekes and Joe Hoffmann. Appellant told Knoxville detective Thomas Stiles that "just a couple of hours" before going to Armstrong's apartment, he bought some cocaine from a man named "Ray" in Walnut Hills. However, he told the Cincinnati detectives that he got the cocaine at about 4:00 p.m. from someone known as "G Man." Later that day, at an unspecified time, appellant felt a renewed craving for cocaine. He took a video cassette recorder ("VCR") from his home and gave it to Ray as security for a fifty-dollar cocaine purchase. However, appellant had no money with which to redeem the VCR. He realized that failure to get it back would cause trouble with Ghitana.

Appellant decided to rob Armstrong, knowing that "if [he] robbed her he would have to kill her." Appellant telephoned Armstrong to tell her he would "stop in." When he arrived, he found Brandy asleep on the couch, woke her, and put her to bed. He took some time to build his courage. At about 11:00 p.m., appellant said to himself: "[E]ither you go do it or you don't." He came up behind Armstrong as she stood over a bird cage and choked her with his hands. He then tried to smother her with a pillow, but doubted whether she had stopped breathing. To "make sure she was dead," he strangled her with a length of clothes line he had brought with him from his car. He then searched the bedroom, stealing approximately *73 $300 and some credit cards.

Appellant went back to Walnut Hills, redeemed the VCR from Ray, and made another fifty-dollar cocaine purchase. At 12:30 a.m., after injecting the cocaine, appellant "got to thinking again." Knowing that Brandy could identify him as the last person to visit the Armstrong apartment that night, appellant decided to go back and kill her.

Appellant returned and tried to smother Brandy with a pillow. Because she was "bucking" and "fighting," he decided that the pillow "wasn't doing the work." He tried to choke her with his hands. She continued to make gurgling sounds, so he taped her breathing passages shut with duct tape he had brought with him. After killing Brandy, appellant moved Armstrong's body to the bathroom. Intending to dismember the body for easier disposal, he nearly cut her leg off before abandoning the effort. He then returned to the bedroom, where he took off Brandy's underpants and inserted his finger into her vagina. He searched the apartment again, finding and taking a checkbook, a ring, a .32 caliber pistol, and a box of ammunition. At 3:00 a.m., he returned to his apartment. At 6:00 a.m., he fled Cincinnati.

Appellant was indicted for the aggravated murder of Armstrong, R.C. 2903.01(B), the aggravated murder of Brandy, R.C. 2903.01(A), and aggravated robbery. Count One, charging appellant with murdering Armstrong, carried two specifications of aggravating circumstances: murder during the commission of aggravated robbery, R.C. 2929.04(A)(7), and murder as part of a course of conduct involving the purposeful attempt to kill two or more persons, R.C. 2929.04(A)(5). Count Three, which charged appellant with murdering Brandy, also carried two specifications: murder for the purpose of escaping accountability for the murder of Armstrong, R.C. 2929.04(A)(3), and murder as part of a course of conduct.

A jury of the Court of Common Pleas of Hamilton County convicted appellant of all charges and specifications. After a mitigation hearing, the same jury sentenced appellant to life imprisonment for murdering Armstrong and recommended a sentence of death for murdering Brandy. The trial judge concurred and sentenced appellant to death. The court of appeals affirmed the convictions and sentence. The cause is before this court upon an appeal as of right. Arthur M. Ney, Jr., Pros. Atty., and Christian J. Schaefer, Cincinnati, for appellee. James M. Rueger and Dominic F. Perrino, Cincinnati, for appellant.

* * *

Voluntary intoxication is a defense to crime where specific intent is a necessary element of the crime and "the intoxication was such as to preclude the formation of such intent * * *." (Emphasis added.) State v. Fox (1981), 68 Ohio St.2d 53, 55, 22 O.O.3d 259, 260, 428 N.E.2d 410, 412. For the defendant to successfully raise this defense, "evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source * * *." State v. Robinson (1976), 47 Ohio St.2d 103, 111-112, 1 O.O.3d 61, 66, 351 N.E.2d 88, 94. Evidence is "sufficient to raise the issue" where, if believed, it would support acquittal. Robinson, supra, at 112- 113, 1 O.O.3d at 66, 351 N.E.2d at 94, quoting State v. Millett (Me.1971), 273 A.2d 504, 508. Because of this court's "deep seated distrust of the reliability of such evidence," the decision to instruct is left to the trial court's discretion. Fox, supra, at 56, 22 O.O.3d at 261, 428 N.E.2d at 412. As we said in discussing the first proposition of law, the jury might reasonably have concluded that appellant was intoxicated, but could not have reasonably doubted that he purposefully murdered Armstrong.

Nor could it reasonably have doubted that appellant purposefully murdered Brandy. Appellant admitted to Hoffmann that he decided to go back and "take care of" Brandy because he feared she would identify him. As was the case with Armstrong, appellant tried three different ways to kill Brandy: first he used a pillow, then his hand, and finally a piece of duct tape that he had brought to the apartment from his car. Since intoxication is no defense unless it negates an element of the offense, the evidence of intoxication here could not have supported a verdict of acquittal. Therefore, the trial court did not abuse its discretion in denying an instruction on voluntary intoxication. Appellant's second proposition of law is overruled. In his third proposition, appellant asserts six instances of prosecutorial misconduct in the state's closing argument during the guilt phase.

* * *

Finally, this court must perform the independent review mandated by R.C. 2929.05(A). The testimony in the penalty phase established that appellant is considered by his co-workers to be a good person and a hard worker. As a child, appellant worked hard to learn to read despite a learning disability. His father had a drinking problem. When sober, his father was unable to communicate with him. Appellant's mother testified that "if he had been himself," he "would not have hurt Brandy or his mother-in-law because he loved them."

In an unsworn statement, appellant reiterated that he had been "high" when he committed these crimes, but apologized for what he had done. Appellant's poor relationship with his father and his reputation as a determined, hard worker are entitled to slight weight, if any, in mitigation. Appellant's age (twenty-nine) is entitled to no weight in mitigation. Additionally, we give little or no weight to his alleged love for Brandy and Armstrong, as it proved too weak to stop him from killing them for his own benefit.

The possibility that appellant was under the influence of drugs when he killed his victims should be assigned some weight in mitigation. Appellant turned himself in, waived extradition, and cooperated with police. This factor tends to show remorse and is entitled to greater weight than any of the others. Nonetheless, we find the combination of mitigating factors presented here to be of almost negligible weight. They are clearly outweighed beyond a reasonable doubt by the aggravating circumstances of which appellant was convicted.

The sentence of death is proportionate to those affirmed for aggravatedmurder as part of a course of conduct in State v. Brooks (1986), 25 Ohio St.3d 144, 25 OBR 190, 495 N.E.2d 407 (father killed three sons), and State v. Poindexter, supra (two victims), and for aggravated murder to escape accountability for another offense in State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598. Accordingly, this court affirms the convictions and the sentence of death.

Hicks v. Collins, 384 F.3d 204 (Ohio 2004). (Habeas)

Background: After unsuccessful direct appeal, 43 Ohio St.3d 72, 538 N.E.2d 1030, and state post-conviction proceedings on his aggravated murder convictions and death sentence, petitioner filed a petition for a writ of habeas corpus. The United States District Court for the Southern District of Ohio, Herman J. Weber, J., denied writ, and petitioner appealed.

Holdings: The Court of Appeals, Siler, Circuit Judge, held that:
(1) petitioner's representation by same counsel at trial and on appeal precluded state rule requiring assertion of ineffective trial counsel claims on direct appeal from serving as procedural bar to habeas claims concerning trial counsel's conduct;
(2) petitioner procedurally defaulted on ineffective assistance of appellate counsel claims by not raising them in accordance with state procedural rule;
(3) defense counsel did not render ineffective assistance in connection with use of state psychologist's testimony;
(4) defense counsel was not otherwise ineffective;
(5) prosecutor did not make improper comment in urging jury to act as community conscience;
(6) prosecutor did not violate Brady or improperly use victim impact statements; and
(7) prosecutor's improper review of all statutory mitigating factors did not prejudice petitioner. Affirmed.

SILER, Circuit Judge.
Petitioner John R. Hicks was convicted after a trial by jury of two counts of aggravated murder, Ohio Revised Code (O.R.C.) § 2903.01(B), and one count of aggravated robbery, O.R.C. § 2911.01. He was sentenced to death. O.R.C. §§ 2929.04(A)(3), (A)(5), and (A)(7). After unsuccessful direct appeals and state post-conviction proceedings, Hicks filed a petition for a writ of habeas corpus in accordance with 28 U.S.C. § 2254. The district court denied the petition and he appeals to this court. For the following reasons, we AFFIRM.

I. BACKGROUND

On August 2, 1985, Hicks acquired some cocaine in Cincinnati, Ohio. After ingesting the drug, he desired more and took the videocassette recorder (VCR) from the home he shared with his wife, Ghitana, and stepdaughter, Brandy Green. Hicks gave the VCR to a drug trafficker as security for a cocaine purchase. After consuming the cocaine, Hicks realized he had no money with which to redeem the VCR. Recognizing that the missing VCR would lead to problems with Ghitana, he decided to rob Maxine Armstrong, who was Ghitana's mother and his mother-in-law. He knew that “if [he] robbed her he would have to kill her.” State v. Hicks, 43 Ohio St.3d 72, 538 N.E.2d 1030, 1032 (1989). Hicks went to Armstrong's apartment, where he found Brandy asleep on the couch. He woke her, put her to bed, and prepared to kill Armstrong, telling himself, “you go do it or you don't.” Id. at 1033.

Hicks killed Armstrong by strangling her with a clothes line he had brought with him. He stole approximately $300 and some credit cards from her apartment. He then retrieved the VCR from the drug dealer and purchased more cocaine. Around 12:30 a.m. on August 3, after injecting the cocaine, he “got to thinking again” and realized that Brandy could identify him as the last person to visit Armstrong. Therefore, he decided to return to the apartment to kill Brandy. Upon returning to Armstrong's apartment he tried to smother Brandy with a pillow. As Brandy was “bucking” and “fighting,” he tried to choke her with his hands. When she continued to make breathing sounds, he affixed duct tape over her nose and mouth. After killing Brandy, Hicks moved Armstrong's body into the bathtub so that he could dismember it for easier disposal. After nearly severing one of her legs with a kitchen knife, however, he gave up and returned to the bedroom where Brandy's body was located. He removed her underwear and digitally penetrated her vagina. He then stole other items from the apartment, returned to his own apartment, and fled Cincinnati. On August 4, he surrendered to police in Knoxville, Tennessee, where he confessed to both murders. Hicks was returned to Cincinnati and made additional incriminating statements to Cincinnati homicide detectives Robert Hennekes and Joe Hoffman.

After Hicks was indicted, he filed a suggestion of incompetence to stand trial. The trial court conducted evidentiary hearings and found him competent to stand trial. While the trial court denied the majority of Hicks's pre-trial motions, it deferred ruling on his motion for funding to hire experts until he could “provide more specific information as to the identity and qualification of said expert or experts, the relationship of the expert's expected testimony ··· and the cost of said expert.”

The guilt phase of Hicks's trial began on February 3, 1986. Hicks did not present any evidence on his insanity defense and subsequently withdrew his insanity plea. On February 12, 1986, the jury found Hicks guilty on all counts. The sentencing phase of his trial began on February 13, 1986, and Hicks presented mitigating evidence and made an unsworn statement. On February 14, 1986, the jury recommended death for the murder of Brandy Green and life imprisonment for the murder of Maxine Armstrong. Based upon its independent review of the evidence, the trial court sentenced Hicks to death for Green's murder, thirty-years' imprisonment for Armstrong's murder, and ten to twenty-five-years' imprisonment for aggravated robbery.

Hicks appealed to the Ohio Court of Appeals and asserted nine assignments of error. In 1988, the appellate court affirmed his convictions. He appealed to the Supreme Court of Ohio, asserting ten assignments of error. It rejected his arguments and affirmed his sentences. Hicks's subsequent motion for rehearing was denied by the Ohio Supreme Court in 1989. He then filed a petition for writ of certiorari in the United States Supreme Court, but it was also denied. In 1990, pursuant to O.R.C. § 2953.21, Hicks filed a petition for post-conviction relief in the Hamilton County Court of Common Pleas, raising forty-one issues for review. The trial court denied his motion for relief from judgment. Hicks appealed to the court of appeals, raising twelve assignments of error. In 1993, the appellate court affirmed the decision of the trial court. Hicks then sought discretionary review before the Ohio Supreme Court, which dismissed his appeal on July 21, 1993, for lack of a substantial constitutional question.

In the interim, Hicks filed an application for delayed consideration in the Ohio appellate court in September 1992, submitting thirty-seven assignments of error. On December 1, 1992, the appellate court denied his application and he appealed to the Ohio Supreme Court. On October 27, 1993, the Ohio Supreme Court affirmed. On December 15, 1993, the Ohio Supreme Court denied his motion for rehearing. On March 5, 1993, Hicks filed a motion for reinstatement of direct appeal in the Ohio Supreme Court, which in turn denied his request.

In 1994, Hicks filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Ohio. An evidentiary hearing was held in 1997. In April 2001, the district court entered its thorough 171-page order denying Hicks's petition. However, it issued a certificate of appealability (“COA”) on the issues of ineffective assistance of counsel during the guilt and penalty phases and prosecutorial misconduct. We granted Hicks's request for a COA on the additional issue of ineffective assistance of appellate counsel.

* * *

A. Ineffective Assistance of Trial Counsel 1. Cocaine Expert

Hicks first alleges that he was denied the effective assistance of counsel during the guilt phase of his trial because his counsel failed to consult with or obtain an expert on the effects of cocaine on the human body. Prior to trial, Hicks's counsel, Dominic Perrino and James Rueger, filed a notice of intent to rely on the defense of not guilty by reason of insanity. Hicks had not been evaluated prior to the filing of this notice and none of the three experts who subsequently evaluated him concluded that he was insane on the date of the murders. As Hicks's counsel realized during pretrial investigation that his cocaine ingestion could affect the guilt and penalty phases of his trial, they applied for the appointment of an expert witness pursuant to O.R.C. § 2929.024.FN2 Hicks's counsel anticipated the need for an expert on the pharmacological, physiological, and psychiatric effects of cocaine, specifically as it related to his ability to form intent to commit aggravated murder and any diminished mental capacity for mitigation purposes. The trial court advised Hicks's counsel that if they came forward with such an expert witness the request would probably be granted. The trial court deferred ruling on Hicks's motion, specifically “taking it under submission pending further evidence, further argument from defense counsel.” Nevertheless, Hicks's counsel neither renewed the motion to appoint an expert nor obtained an expert, instead relying upon the testimony of Dr. Nancy Schmidtgoessling, a court-appointed psychologist.

FN2. O.R.C. § 2929.024 provides that if an indigent defendant is charged with aggravated murder, the court in its discretion may authorize defense counsel to obtain an expert if necessary for the proper presentation of the defendant's trial or sentencing hearing. The payment for the expert's fees and expenses are to be made in the same manner that payment for appointed counsel is made pursuant to Chapter 120 of the Ohio Revised Code.

Dr. Schmidtgoessling's testimony on Hicks's behalf was less than favorable. Although Dr. Schmidtgoessling did not hold herself out as a “cocaine expert,” she had been directed to evaluate Hicks regarding his competency and to determine if he was insane on the date of the crimes. While she testified that Hicks's criminal actions were consistent with cocaine intoxication and that he was probably impaired, she nonetheless opined that he acted with purpose and intent. According to Hicks, Dr. Schmidtgoessling inaccurately testified as to the following: voluntary cocaine intoxication does not meet the definition of “disease or defect”; Hicks understood his actions; the duration of cocaine intoxication peaks at about fifteen to twenty minutes; and injection of cocaine, rather than inhalation, leads to a quicker reaction, although “the intensity or symptoms are equally the same” whether injecting or inhaling it. Dr. Schmidtgoessling's testimony was damaging to Hicks's case because it significantly narrowed the time in which he could have been acting under the influence of cocaine. Because Hicks's counsel were surprised by Dr. Schmidtgoessling's testimony and “as to the affect that she testified as her qualifications as to what cocaine affect has on a person, how long lasting it was,” they attempted to use Dr. Ross Zumwalt, the Hamilton County Coroner, as a “cocaine expert” during cross-examination. Dr. Zumwalt's testimony did not benefit Hicks. The district court denied Hicks's habeas relief on his claim of ineffective assistance of trial counsel because he feigned mental illness and refused to cooperate with his counsel, concluding that Hicks's “failure to cooperate had an adverse impact on the ability of his defense counsel to conduct his defense and that the decision to use Dr. Schmidtgoessling as a defense expert was a tactical decision by counsel and appropriate under the circumstances.”

* * *

Second, the record indicates that Hicks was a malingerer who refused to assist his counsel in the preparation of his defense. For example, prior to trial Perrino informed the trial court that defense counsel needed a “cocaine expert” because they did “not have assistance from our client except that we know from certain things that he indicated in statements that were given to us to the ingestion of cocaine and what its effect may have on him.” Furthermore, although Rueger observed that Hicks was “fully communicative” during their first meeting, Hicks later “went into a shell, ··· wouldn't talk, wouldn't look at you, just stared off in the distance and kind of rocked back and forth.” Rueger also insisted that Hicks's lack of cooperation and participation in his own defense adversely affected his counsel's preparation of the case. Rueger cited a specific instance in which he and Perrino “couldn't even communicate or ask [Hicks] whether or not the notes that the Police Officers in Cincinnati had taken ··· were consistent with what he remembered talking to them about.” Dr. James Reardon, a counseling psychologist who testified during the evidentiary hearing on behalf of Warden Collins, insisted that “Dr. Schmidtgoessling was prevented from administering and interpreting any psychological tests” upon Hicks due to his feigning mental illness; Dr. Schmidtgoessling could not obtain “any kind of coherent history or representation of the circumstances and facts of the case based on [ ] Hicks's behavior”; and by reason of Hicks's behavior and lack of cooperation, his counsel were unable to have any psychological tests performed upon him, “which may have contributed to their ability to assess him in a more complete way.”

Third, and most importantly, even if the jury had been informed of cocaine psychosis and its effects, the result of the proceeding would not have been different. Like Dr. Schmidtgoessling, Dr. Parran testified that Hicks's actions were purposeful and that “certainly people can do purposeful actions when they're involved in cocaine psychosis.” Additionally, Dr. Parran could not testify that Hicks was insane at the time he committed the offenses. The decision to employ Dr. Schmidtgoessling was a direct result of Hicks's refusal to cooperate with his counsel. See Coleman, 244 at 545 (death penalty petitioner was not subjected to ineffective assistance of counsel where he did not cooperate with his counsel concerning the investigation and identification of mitigating evidence, imposed restrictions upon his counsel, and refused to submit to further psychological or psychiatric testing). A fair assessment of counsel's performance requires that we “evaluate [their] conduct from counsel's perspective at the time.” Combs, 205 F.3d at 278 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

3. Mitigation Hicks further claims that his trial counsel was ineffective in failing to introduce evidence of his abusive upbringing, problems in school, poor self-esteem, and history of drug and alcohol abuse in mitigation. Arguably his most compelling contention is that counsel should have, at a minimum, called some sort of expert witness instead of relying on the testimony of his mother and six former co-workers, who generally testified that Hicks was a “good guy” and that his crimes were out of character. At the evidentiary hearing before the district court, Dr. Susan Shorr, a mitigation specialist, and Dr. Julia Hawgood, a clinical psychologist, opined that this failure to call a psychiatric or psychological expert rendered counsel's mitigation efforts ineffective.

Under the Strickland standard, however, Hicks's counsel was not constitutionally ineffective in mitigation. This is so because, as the district court found, “Mr. Hicks did not assist his counsel because he was feigning the symptoms of mental illness.” It is significant that Dr. Shorr, who testified at the evidentiary hearing that counsel's mitigation strategy was substandard, “did not consider, in making her opinion, the fact that Mr. Hicks refused to cooperate with his counsel.” Similarly, Dr. Hawgood, whose testimony was to the same effect, conceded that “Mr. Hicks admitted [to her, in the course of her evaluation of him] that prior to and during his trial he had feigned mental illness.” FN7 This singular fact-that Hicks did little to participate in his own defense because he was faking a mental illness-distinguishes this case from those Hicks relies upon and effectively forecloses a finding that counsel was ineffective.

FN7. This concession is particularly damaging to Hicks's specific contention that counsel was ineffective for failing to call a psychologist or other expert during the mitigation phase because, had counsel in fact called such an expert, the prosecution could have introduced this concession in rebuttal. As it was, the jury was not privy to this damning information.

Hicks further argues that his counsel was ineffective in failing to present his history of sexual abuse to the jury. He alleges that his counsel “entirely overlooked the detailed information concerning [his] background that Shirley Leahy had compiled for the court psychiatric clinic.” FN8 Leahy compiled a detailed report concerning Hick's background which, although her report was available to Hicks's counsel for mitigation purposes, was never used. Hicks also claims that while many of his relatives were prepared to testify during the mitigation phase of his trial, none was called to do so. FN8. Shirley Leahy, a clinical social worker who interviewed Hicks prior to trial, aided Dr. Schmidtgoessling in constructing Hicks's social history.

Despite Hicks's contentions, his counsel was not ineffective. Hicks was uncooperative and never communicated any history of sexual abuse to his counsel. Although Perrino reviewed Leahy's report, defense counsel's failure to introduce the report or call Leahy as a witness was probably a tactical decision. For instance, in the “Sexual History” section of Leahy's report, she documented that Hicks was molested by a fourteen-year-old male cousin when he was eight years old. In addition, Hicks confided in Leahy that he engaged in homosexual prostitution as a teenager and after he married his first wife. If Leahy's report had been admitted or she had testified, the jury would have learned this information. In all likelihood, this fact would have been unfavorable to Hicks. Furthermore, while Hicks was molested by a juvenile when he was a child, Hicks molested Brandy, postmortem, when he was an adult. Therefore, defense counsel*218 made a tactical decision to keep this potentially-damaging information from the jury.

We “reject[ ] [Hicks's] claim that the failure of his counsel to investigate mitigating evidence amounted to ineffective assistance because [Hicks was] uncooperative····” Martin v. Mitchell, 280 F.3d 594, 612 (6th Cir.2002) (citing Coleman, 244 F.3d at 545-46). There is an “extremely high standard that must be met for counsel's representation in the penalty phase to be considered constitutionally inadequate[,]” Mason v. Mitchell, 320 F.3d 604, 643 (6th Cir.2003) (Boggs, J., dissenting), and Hicks has fallen short of that standard.

* * *For the foregoing reasons, the judgment of the district court is AFFIRMED.