dissenting.
Although I concur in the majority’s opinion to the extent that it denies relief on the issues raised in the guilt phase of Johnston’s trial, I believe that Johnston was denied effective assistance of counsel at the penalty phase of his trial. Therefore, I respectfully dissent and would remand for a new penalty phase trial only.
Throughout Johnston’s trial, the state portrayed him as a violent, evil individual who deserved the death penalty. The state focused on the appalling circumstances surrounding the murder of Nancy Johnston, and' on several prior incidents during which Johnston exhibited violent behavior. By the time the penalty phase of Johnston’s trial was completed, the jury was aware that Johnston: (1) allegedly damaged a car, overturned a motorcycle, and threatened his brother in November, *10611985; (2) assaulted and threatened to kill his girlfriend in September, 1987; (3) pointed a shotgun at police and threatened to kill police officers in September, 1987; (4) fought with and threatened to kill police officers in December, 1988; and (5) fought with police, and threatened to kill his wife in early 1989.
The state also sought to sway the jury by making what I consider to be improper, inflammatory remarks. Among other things, the state referred to Johnston as a “murderous animal,” “the embodiment of evil,” and “Satan” as it encouraged the jury to give him the death sentence. While I do not feel that these statements “so infected the trial with unfairness as to make the resulting conviction a violation of due process,” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), they are nonetheless important because they contributed to the negative perception of Johnston.
By the time the prosecution was finished, the jury’s perception of Johnston could not have been worse. Mitigating evidence was needed to soften the prosecution’s portrayal of Johnston as a “murderous animal” and to provide some sort of explanation for his violent behavior at the time of the murder. Yet, despite the availability of evidence that attributed Johnston’s violent behavior to diminished mental capacity, alcohol dependency, and organic personality disorder, Johnston’s counsel failed to present this evidence to the jury. Instead, counsel presented the testimony of eleven lay witnesses who collectively testified that Johnston: (1) was a model prisoner; (2) had a difficult childhood; and (3) had a problem with alcohol, and acted violently when inebriated. While this evidence may have helped the jury to view Johnston as something other than “the embodiment of evil,” it did not explain his violent behavior.
The majority correctly notes that Johnston’s counsel made a tactical decision to refrain from introducing additional mitigating evidence. The relevant question however is not only whether counsel’s choices were strategic, but whether they were reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Here, clearly they were not. There is just no strategy that satisfactorily supports counsel’s inaction.
Had counsel introduced the evidence that was available, the jury would have been aware that Johnston may be incapable of controlling his anger. Dr. Sam Par-watikar, who was appointed by the court to conduct a pretrial evaluation of Johnston, testified in a deposition that Johnston’s medical records revealed a history of head injuries, borderline personality, and alcohol abuse. Dr. Parwatikar further testified that these conditions were likely to have made Johnston sensitive to minor altercations, and susceptible to the loss of inhibition associated with the use of alcohol and drugs. In Dr. Parwatikar’s opinion, Johnston was suffering from extreme emotional and mental duress at the time of the murder and his ability to deliberate and conform his behavior to the requirements of the law was substantially impaired.7
The Missouri Supreme Court held that counsel’s decision to refrain from calling Dr. Parwatikar to testify was appropriate *1062because Dr. Parwatikar’s report contained references to Johnston’s stormy relationship with his wife, his inability to hold his temper when he drank, including an incident where Johnston threatened his wife by putting a gun to her head while she was driving, and numerous drunk driving convictions. The court also concluded that Dr. Parwatikar’s testimony was suspect because it was based on Johnston’s inaccurate account of the murder. I disagree.
Dr. Parwatikar’s testimony regarding Johnston’s mental state and ability to conform his behavior to the requirements of the law at the time of the murder are suspect because they are based upon Johnston’s own version of the circumstances surrounding the murder. But Dr. Parwa-tikar’s conclusions about the behavioral impact of head injuries, borderline personality, and alcohol abuse are not based on Johnston’s assertions; these conditions are well documented in his medical records. Further, Dr. Parwatikar would not have further tainted the jury’s negative perception of Johnston by testifying about threats to his wife or drunk driving convictions because the jury was already aware of Johnston’s extensive violent history.
In addition to Dr. Parwatikar’s testimony, counsel failed to present the testimony of Dr. Sean Yutzy, who performed a psychiatric evaluation of Johnston in 1990. Dr. Yutzy would have testified about Johnston’s history of head injuries and his alcohol addiction. Dr. Yutzy would have also testified that Johnston suffered from the after-effects of prior head injuries and from an antisocial personality disorder. Dr. Yutzy opined that Johnston’s chaotic relationship with his wife, his emotional disturbance at the time of the offense, and his inability to appreciate the criminality of his conduct were all related to the personality disorder. Although Dr. Yutzy’s report cited numerous incidents of violent behavior on the part of Johnston, including threats to kill his wife, and was partially based on inaccurate facts, it supported Dr. Parwatikar’s theory that head injuries and alcohol abuse contributed to Johnston’s violent behavior.
Johnston’s counsel also failed to present the testimony of Dr. Fred Gaskin, who maintained a private psychiatric relationship with Johnston from 1988 to 1989. Dr. Gaskin diagnosed Johnston as being alcohol dependent and as suffering from a history of head trauma. Dr. Gas-kin opined that these injuries caused symptoms that were consistent with post trauma head syndrome, or organic brain syndrome, which is characterized by the impairment of brain functions. The Missouri Supreme Court opined that Dr. Gaskin’s conclusions were faulty because they were based on Johnston’s own version of his life, and because Dr. Gaskin did not attempt to corroborate his data using independent sources. However, there was nothing to suggest that Johnston lied about the events of his life during his relationship with Dr. Gaskin, and Johnston’s history of head injuries and alcohol abuse is well documented.
The evidence elicited during trial portrayed Johnston in an extremely negative manner. Johnston’s counsel was obligated to present any available mitigating evidence in an attempt to spare his life. The jury was fully aware that Johnston was a man with a violent past. What the jury lacked was a credible and available explanation for his violent behavior. The testimony of the three doctors together would have provided a credible explanation. Counsel’s decision to keep this mitigating evidence from the jury was not reasonable because the jury had virtually no reason to conclude that the death penalty was not warranted, and because there is a substantial likelihood that at least one juror would have voted against the imposition of the *1063death penalty had the mitigating evidence been introduced. This would have allowed the trial judge to resolve the ensuing deadlock by sentencing Johnston to a term of life imprisonment without the possibility of parole.
For these reasons, I would remand to the trial court for a new penalty phase trial.
. On cross-examination Dr. Parwatikar agreed that Johnston did not suffer from a mental disease or defect at the time of the murder, and that Johnston was competent to stand trial. Dr. Parwatikar also conceded that he knew of a variety of instances where Johnston acted violently or engaged in criminal behavior in the past. This testimony led Johnston’s counsel to refrain from calling Dr. Parwatikar to testify.