James Willie BROWN, Petitioner-Appellant, v. Frederick HEAD, Warden, Georgia Diagnostic Prison, Respondent-Appellee, 285 F.3d 1325

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC Before CARNES, BARKETT and HULL, Circuit Judges. PER CURIAM: In his petition for rehearing and suggestion for rehearing en banc, Brown argues, among other things, that we erred in considering as evidence that he had been faking his mental illness the fact that he had sufficient possession of his mental faculties a day or two after the crime to have changed two tires on the car he used in the crime in order to avoid detection. See Brown v. Head, 272 F.3d 1308, 1314 (11th Cir.2001).

We extend our discussion on that point to explain further why Brown’s conduct in attempting to avoid detection by changing the tires on his automobile is relevant and probative evidence concerning his mental condition. Two psychiatrists testified for the defense at the sentencing stage that Brown was completely out of touch of reality when they examined him, and that irrationality was one of the primary symptoms on which they based their diagnosis. Dr. Dellatorre, who examined Brown after he was arrested and charged, testified Brown was at that time: “out of contact with reality. He was overtly psychotic.

He showed a lot of delusional thought, looseness of association, flight of ideas, somewhat confused and disorganized.” He further testified that, “[i]n every way he was out of touch with reality,” and “was talking about hallucination, hearing voices of demons and the Lord, also the Lord talking to him several times and so forth.” Those symptoms, Dr. Dellatorre testified, were indications of schizophrenia paranoia, which was his diagnosis. Another defense witness, Dr.

Steven Marinkovic, an expert in forensic psychology, gave similar testimony at the sentence hearing, although his diagnosis related to a later point in time, the time when he had first examined Brown five years after the crime. He testified that at that time Brown was “obviously psychotic,” and “unable to think clearly. He was hallucinating. He was paranoid at that time.” Dr. Marinkovic further testified that Brown was not faking but was genuinely out of touch with reality. Based on the symptoms as he understood them to be, he concurred in the diagnosis of paranoid schizophrenia.

The essence of this mitigating circumstance evidence is that Brown at least periodically, including at and around the time of the crime, was obviously psychotic, delusional, suffering hallucinations, and generally out of touch with reality. It is entirely fair and proper to consider the evidence that strongly contradicts that diagnosis. Among that evidence is the testimony of witnesses about the steps Brown took in a rational, controlled, and goal-oriented effort to hide his involvement in the murder and avoid detection.

That evidence goes to the heart of the symptoms upon which the defense’s theory of Brown’s mental health, which was offered in mitigation, is based. Evidence that Brown knew what was going on and engaged in rational behavior to minimize the chances of his apprehension and capture is evidence that he was not out of touch with reality. It is evidence which tends to show Brown was faking the crucial (to the diagnosis of the defense experts) symptoms of being delusional, hearing voices, and generally being out of touch with reality and unable to think clearly.

The question is not whether Brown was insane, of course, but whether the mental state mitigating circumstances evidence offered on his behalf in the testimony of the two defense experts was accurate. Any evidence that is inconsistent with those experts’ belief that Brown did not know what was happening undermines their testimony. Evidence of rational, goal-oriented, detection-avoiding behavior by Brown contradicts some of the important premises upon which the defense experts’ diagnosis of him was based, the ones about him being out of touch with reality, and it thereby undermines their diagnosis.

It indicates that, at least to some extent, Brown was faking the symptoms they described and relied upon in reaching their conclusions. The petition for rehearing filed by Appellant Brown is DENIED. Because no member of this panel, nor any other judge in regular active service on this Court, has requested that the Court be polled concerning rehearing en banc, the suggestion for rehearing en banc is DENIED.