Jeffrey A. Modisett
Susan K. Carpenter
Public Defender of Indiana
Janet S. Dowling
Evans, Dowling & Youngcourt, P.C.
Attorneys for Appellee
Attorney General of Indiana
Christopher L. LaFuse
Deputy Attorney General
Jeffrey A. Modisett
DEBRA DENISE BROWN,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
Petitioner Debra Denise Brown appeals the denial of post-conviction relief with respect to
her convictions for MurderSee footnote
and Attempted Murder,See footnote
and her sentence of death.See footnote
We earlier affirmed
these convictions and this sentence on direct appeal. Brown v. State, 577 N.E.2d 221 (Ind. 1991),
reh'g denied, 583 N.E.2d 125, cert. denied, 506 U.S. 833 (1992). We now affirm the denial of
Debra Denise Brown and her companion, one Alton Coleman, were convicted and sentenced
to death in separate proceedings for stomping a seven-year old girl to death and attempting to choke
a nine-year old girl to death with a belt after sexually assaulting the latter. These crimes were part
of a crime spree which also took Brown and Coleman to Ohio, Michigan and Illinois. About a
month after the Indiana crimes were committed,
Brown was apprehended in Illinois and turned over
to the FBI, which had been actively engaged in the investigation.
Our discussion infra and our opinions on Brown's and Coleman's direct appeals contain
additional details of their crimes, trials, and claims for relief. See Brown, 577 N.E.2d at 224-25;
Coleman v. State, 558 N.E.2d 1059, 1060-61 (Ind. 1990), cert. denied, 501 U.S. 1259 (1991).
Brown contends that she is entitled to post-conviction relief because the State violated its
obligation to disclose material exculpatory evidence by failing to disclose prior to her trial certain
psychological profiles and related materials compiled by the FBI. As noted in Background, supra,
Brown and Coleman had been interstate fugitives. As such, the FBI prepared a psychological profile
and related material on Brown to assist in her capture. During preparation for Brown's trial, Indiana
authorities had in their possession a substantial volume of FBI materials. When the FBI sought to
have these materials returned, Brown's trial counsel protested, contending that he had not yet had
time to review all of the materials. Upon a representation from the State that the files contained no
exculpatory material, the trial judge permitted the materials to be returned to the FBI.
In preparation for post-conviction proceedings, Brown obtained four documents in the possession of the FBI which she contends are exculpatory. Brown is, of course, correct that the State has an affirmative duty to disclose evidence favorable to a criminal defendant. Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady v. Maryland, 373 U.S. 83 (1963)). Brown raises several interesting questions as to whether the State had a pre-trial obligation to disclose these four documents. However, an allegation of a Brady violation requires a demonstration that the undis closed favorable evidence "could be reasonably taken to put the whole case in such a different light as to undermine confidence" in the trial court's judgment. Kyles, 514 U.S. at 435. We elect to
proceed to that inquiry first. Because we find that these four documents could not be reasonably
taken to put the whole case in such a different light as to undermine confidence in the trial court's
judgment, we hold that Brown is not entitled to post-conviction relief on this contention.See footnote
We note first that while Brown seeks to have both her convictions and her sentence reversed
on the basis of this claim, she makes no specific argument as to how these four documents undermine
confidence in the jury's guilty verdicts. Rather, her specific claims are that these documents contain
important evidence of her psychological domination and control by Coleman, mitigating circum
stances which should have been considered by the jury during the penalty phase.
Certainly the subject matter of these four documents comprise mitigating circumstances appropriate for consideration in a death penalty case. Our death penalty statute specifically itemizes the domination and control of another person as a mitigating circumstance.See footnote 5 Acting under the
influence of an extreme emotional disturbance is another statutory mitigating circumstance.See footnote
mental health of the defendant is frequently considered as a mitigating circumstance under the
"catch-all" mitigator.See footnote
These four documents implicate each of these circumstances.
The first FBI document, Brown's Exhibit 31, states in pertinent part:
Coleman has a violent temper, and when he is upset he is uncontrollable. *** Ever since Coleman's mother died of cancer, Coleman seems to have gone off his rocker. *** Debra Denise Brown has lived with Coleman and his blind grandmother for the past two years. Brown has lost about 35 pounds during this time. She has been virtually a prisoner in the house. If she left without Coleman, he would beat her. During [an] interview with FBI agents, Brown was very docile. She admitted that scars and scratches on her face were from Coleman. It is believed that she is com pletely under the control of Coleman.
(R. at 1894-96.)See footnote
The second and third FBI documents, Brown's Exhibits 32 and 33, contain
essentially the same information. (R. at 1898; 1902.) The fourth FBI document, Brown's Exhibit
36, is an extensive report prepared by the FBI regarding her background, including an interview with
Lottie Mae Brown, Brown's mother. The report indicates that:
1. Brown's father had severe mental problems, drank to excess, and physically
abused family members including the children.
2. Brown had experienced a drug overdose which required hospitalization in
1980 and may have been using drugs regularly.
3. Brown's personality changed drastically after she met Coleman.
4. Brown moved in with Coleman and would not talk to her family, but would
look to Coleman to answer for her.
5. Brown's mother felt that Coleman completely controlled Brown and that she
would do whatever Coleman asked her to do; Brown's mother also believed
that Coleman was beating Brown and using her as a prostitute.
6. Brown's mother had seen Brown with her face "all beaten up" during the time
Brown was living with Coleman.
(R. at 1931.)
From the very outset of the penalty phase, defense counsel made it clear that his principal
argument would be that Brown should not be sentenced to death because she had been acting "under
the substantial domination of Alton Coleman." (T.R. at 3344.) In a powerful fourteen page opening
statement to the jury at the beginning of the penalty phase, defense counsel spent thirteen pages of
it emphasizing Coleman's control over Brown. (T.R. at 3385-3400.) Specific testimony to this
effect was presented by defense counsel throughout the penalty phase.
Counsel proceeded to make his argument primarily through expert testimony. First, a Dr. Batacan, a psychiatrist who had examined Coleman, testified as to Coleman's manipulative personal ity. Then a Dr. Periolet, another psychiatrist who had examined Coleman, testified that one charac
teristic of Coleman's sociopathic personality was that he would assess who he could control.
Counsel then called a Beverly Perkins, Coleman's ex-wife, who testified that Coleman used physical
violence and threats of harm to her family whenever she tried to leave their apartment to do some
thing by herself.
Next counsel called a Dr. Kelly, a psychiatrist, who testified as to the results of his examina
tion of Brown. Dr. Kelly had examined Brown twice and also discussed the results of his examina
tion with a psychologist, Dr. Rogers, who had independently examined her. In compiling the results
of his examination, Dr. Kelly also examined additional hospital records, school records and the report
of another psychologist, Dr. Suran, concerning Brown. Dr. Kelly testified as to Brown's difficult
upbringing, based on his conversation with members of her family, including her mother and sister.
He discussed her poor school record, a serious auto accident in which she had been involved, and her
record of truancy from school. He noted that her school records showed an IQ at the age of 12 of
59 and a current IQ of 74.
In Dr. Kelly's expert opinion, Brown suffered from the mental illness of dependent personal
ity disorder. Among the causes of the dependent personality disorder identified by Dr. Kelly were
her limited intelligence and difficult family upbringing. Dr. Kelly also gave his expert opinion that
Brown was under the domination and control of Coleman at the time of the crime and that she was
a good candidate for rehabilitation.
Defense counsel also called a Dr. Suran, a clinical psychologist, who had conducted a
diagnostic psychological evaluation of Brown, including a social history. Dr. Suran reported that
Brown scored 75 on the Wechsler IQ test and that she functioned as mildly retarded. His examina
tion showed her to have "a very depraved background" and that she never evolved to the level of
emotional development consistent with her age. More specifically, in his interview with her dealing
with her family and background, he learned that she had been the subject of "frequent and repeated
physical abuse, sexual abuse, and a very strong sense of rejection and abandonment." Dr. Suran
found Brown to be the victim of severe environmental deprivation.
It was Dr. Suran's expert opinion that Brown suffered from borderline retardation, depres
sion, and had a dependent personality or passive dependent personality. Dr. Suran also made
reference to Brown's childhood abuse, collected school and medical records, and noted her child
hood mental retardation diagnosis.
Two statements from Dr. Suran's testimony bear citation here:
[I]ndependent of her relationship with Alton Coleman, I really find no evi dence in Debra's personality or functioning of tendencies to commit the kinds of offenses for which she has been convicted, and it is my conclusion that it is only in and through her relationship with Alton Coleman that she has had any involvement in these crimes.
(T.R. at 3746-47). Further:
I do not find in Debra Brown the kind of impulse type of hostile, aggressive, resolved or unresolved, instincts and impulses that is capable of committing the kinds of offenses for which she has been convicted. What I do find is a pathological degree of dependent behavior on her part that through association with another agent that was capable and that did have such hostile impulses that she would act out those impulses dependently serving the other agent, in this case, the agent being Alton Coleman.
(T.R. at 3757.)
The trial court gave reasonably extensive treatment to this evidence in its sentencing order:
There is a large quantity of evidence from the reports and testimony of a clinical psychologist who examined defendant Brown on April 18, 1986 and testified at trial and the report of a psychiatrist who examined Deborah [sic] Brown on August 1 and August 8, 1984, and testified at trial and other psychological reports that the Defen dant was under the substantial domination of her co-defendant at the time these offenses were committed. The Court has already detailed the Defendant's mental state at the time of the commission of these offenses. It is agreed by the experts that the Defendant was a young woman with borderline intellectual functioning with a dependent personality disorder. It is further agreed that she had demonstrated an inability to function independently and to assume responsibility for major areas of her life. It is evident from her interview with Dr. Suran that Alton Coleman provided her with attention and support and that he is someone that this defendant became de voted to. Further evidence was presented of the dominant, manipulative personality of Alton Coleman. Truly he is such a person and appears to be totally without conscience. The affect of such a person on one with Deborah [sic] Brown's inade quacies is also obvious. The central question to this Court is whether or not Deborah [sic] Brown was so under the domination of Alton Coleman because of her own inadequacies and personality disorders that she could not make a rational choice as to her own participation in repeated violent criminal acts, accompanied by repeated efforts to deceive intended victims and others and to evade prosecution. Defendant Brown was not and is not insane nor mentally ill. She was not under the influence of alcohol or drugs. In the opinion of this Court she made a choice to follow Coleman and to prove herself to him. She stated to Dr. Suran "I know I have to suffer for what I did, but I'll give my life for him. I'll fight for my husband's (Coleman) life. I'll go down for him. I'll put my life on the roll for him. . . I loved him so much, I told him that I would go down with him, and I would give up my life for him." The Court would agree that defendant Brown reached her decision making processes in this crime spree with limited intellectual tools. But the Defendant made a rational decision to become involved with Coleman no matter what the consequences, includ ing these horrible crimes committed against innocent children and many others including at least two other vicious murders. The domination over this defendant by Alton Coleman is not sufficient to excuse her criminal conduct.
(T.R. at 355-57.)
It is true that at the post-conviction hearing, both trial counsel and the experts who testified
at trial indicated that they would have been able to make their case that Brown was under Coleman's
domination and control more persuasively had they known what was in the four FBI documents.
The post conviction court disagreed, finding that these materials did not add anything to the evidence
which was presented to the jury. We find no basis to disagree with this conclusion.See footnote
While the FBI
reports contained information relevant to mitigating circumstances appropriate for consideration in
the penalty phase of Brown's trial, trial counsel in fact argued those mitigating circumstances
vigorously with the help of expert testimony and the trial court clearly took them into account in
In a related argument, Brown contends that the FBI wrongfully denied her access to a substantial quantity of documents concerning her case.See footnote 10 She argues that this denial has prevented her from fully and adequately investigating, preparing and presenting her claim for post-conviction relief. She further asserts that as a result certain federal and state constitutional rights have been violated.
Brown has not presented us with any basis for concluding that her ability to assert entitlement to post-conviction relief has been limited in any material way or that any of her constitutional rights have been violated as a result. Brown's claim appears to be that there might be additional informa tion in the FBI files of the character discussed in part I-A, supra, i.e., information showing that she was under the domination and control of Coleman. But as we have already discussed, extensive evidence in support of this mitigating circumstance was presented to the jury and the court during the guilt and penalty phases of Brown's trial. Nothing in Brown's argument gives us any basis for concluding that any undisclosed information "could be reasonably taken to put the whole case in such a different light as to undermine confidence" in the trial court's judgment, Kyles, 514 U.S. at 435.
Brown's principal argument here seems to be along the lines that there might have been additional evidence in the FBI files supporting her claim of domination and control by Coleman. But she also suggests entitlement to the FBI files "to learn what, if any, additional exculpatory informa tion is hidden in the FBI files and to pursue whatever leads might be uncovered." Br. of Appellant at 121. We have recently observed that the post-conviction relief process "is not a device for investigating possible claims, but a means for vindicating actual claims" and that "[t]here is no postconviction right to 'fish' through official files for belated grounds of attack on the judgment or to confirm mere speculation or hope that a basis for collateral relief may exist." Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997), reh'g denied (quoting People v. Gonzalez, 800 P.2d 1159, 1206 (Cal. 1990)). To the extent that Brown does not contend that there is any specific information in the FBI files that supports her claims to post-conviction relief, no rule of constitutional law or state
procedure mandates unfettered access to the FBI files in the hopes of uncovering such. See Roche,
690 N.E.2d at 1133 (citing State v. Marshall, 690 A.2d 1 (N.J. 1997)).
Brown contends that she was denied the effective assistance of counsel to which she was entitled at the penalty phase of her trial because her lawyers failed fully to investigate, develop and present evidence at the penalty phase of her trial. We analyze such claims according to the two- part test announced in Strickland v. Washington, 466 U.S. 668 (1984). See e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind. 1997), reh'g denied, cert. denied, 118 S.Ct. 2064 (1998); Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994). First, we require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or wrongs of counsel were outside the range of professionally competent assistance. Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind. 1991)). "Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the defense was inadequate." Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996) (quoting Terry v. State, 465 N.E.2d 1085, 1089 (Ind. 1984). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel's performance was so prejudicial that it deprived defendant or petitioner of a fair trial. Lowery, 640 N.E.2d at 1041. See Games v. State, 690 N.E.2d 211, 213 (Ind. 1997). We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a
breakdown of the adversarial process that rendered the result unreliable. Lowery, 640 N.E.2d at
1041 (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind. 1991)).
Brown's claim of failure fully to investigate, develop and present penalty phase evidence
focuses on four areas: (1) her family and upbringing; (2) her intellectual and educational deficits; (3)
her absence of any criminal record or history of violence, and her generally positive character, prior
to meeting Alton Coleman; and (4) she was suffering from Battered Women's Syndrome.
At the post-conviction hearing, Brown presented extensive evidence in each of these areas.See footnote
Nevertheless, the post-conviction court found that she had not been denied the effective assistance
of counsel in this regard because prejudice had not been shown. The post-conviction court con
cluded that given the seriousness of the crimes for which Brown had been convicted, the jury was
unlikely to reach a different result even with this evidence.
Without reaching the issue of prejudice, we agree with the post-conviction court's conclusion because we do not find counsel's performance to have been deficient. As discussed in part I, supra, counsel's strategy at the penalty phase was to argue that Brown should not be sentenced to death because she had been acting "under the substantial domination of Alton Coleman" when she commit
ted the crimes for which she had been convicted. In part I-B, supra, we detailed the testimony
elicited by defense counsel at the penalty phase. That recitation demonstrates that counsel did
present to the jury at the penalty phase of Brown's trial evidence of her difficult family upbringing,
her limited educational and intellectual abilities, her positive record of behavior prior to meeting
Alton Coleman and, if not that she was explicitly the victim of Battered Women's Syndrome, that she
functionally suffered from it at Coleman's hands.See footnote
It appears to us that Brown's quarrel with her
trial counsel is over the amount of evidence presented in these three areas at trial, not whether any
investigation, development or presentation took place.See footnote
On this record, we cannot say that counsel's performance was deficient in concentrating his
penalty phase argument on Brown's relationship with Coleman. To be more specific, we cannot say
that it was deficient performance for counsel to marshal his witnesses to try to present as strong a
case as possible that Brown committed the crimes for which she had been convicted under the
domination and control of Coleman and that her submission to his domination and control was
accounted for by her difficult upbringing, her limited IQ and her mental illness of dependent person
ality disorder. Brown has not demonstrated deficient performance by her trial counsel in this regard.
In a related claim, Brown contends that the post-conviction court improperly excluded
evidence relevant to her claim that trial counsel was ineffective for failing fully to investigate, develop
and present mitigating evidence. She argues that the exclusion of this evidence denied her a full and
fair post-conviction hearing. According to Brown, the excluded evidence consisted of the following
1. The testimony of a Mr. See, a Cleveland-based executive of an offender re-
entry program with experience as a witness concerning mitigating circum
stances, which was "offered to show the social, racial and cultural environ
ment in which Brown was raised and to demonstrate how the individuals and
social service institutions charged with [Brown's] care defaulted on their
responsibilities." Br. of Appellant at 93. While See's testimony is of record,
the post-conviction court ultimately excluded it. (R. at 1637-38.)
2. Certain unspecified affidavits relevant to the claim of failure to investigate
and discover mitigating evidence. Br. of Appellant at 98. These affidavits
appear to be of the same nature as those discussed in part III-A of our recent
opinion in Roche, 690 N.E.2d at 1131. They are included in the record but
were "not admitted." (R. at 98.)
3. The post-conviction testimony of Dr. Suran to "the effect of the recently
discovered mitigating evidence on the conclusions he described at trial." Br.
of Appellant at 99. The record contains a filing styled "Proffer of Testimony
of Bernard Suran, Ph.D.," summarizing the testimony he would have given.
(R. at 506-08.)
4. A "social history report" prepared by a Mr. Coconis, a social worker with
experience as an investigator of mitigating circumstances, which was to have
been used as the basis of Dr. Suran's testimony. Br. of Appellant at 101.
Although the State's objection to the introduction of this report was sus
tained, a copy is included in the record. (R. at 1908-17.)
5. The post-conviction testimony of Brown's trial counsel, Mr. Toomey, as to
whether he thought and felt he gave Brown effective representation at trial.
Br. of Appellant at 102. The post-conviction court sustained the State's
objection on grounds that the question of counsel's effectiveness was for the
court to decide. (R. at 1430.)
We find no error with respect to item (2), the exclusion of the affidavits. See Roche, 690
N.E.2d at 1131 (affidavits prepared for similar purpose excluded). We also find no error with
respect to item (5), the prohibition on counsel's testifying as to his own ineffectiveness. Compare
Ind.Evidence Rule 704(a) (testimony is not objectionable merely because it embraces an ultimate
issue to be decided by the trier of fact) and Evid.R. 704(b) (witnesses may not testify to opinions
concerning legal conclusions).
Items (1), (3) and (4) all relate to Brown's family and upbringing, her intellectual and
emotional development, her lack of criminal history before meeting Alton Coleman, and her relation
ship with Coleman. The post-conviction court generally excluded this information on grounds that,
even if it had been presented to the jury during the penalty phase of Brown's trial, it "would not have
made a difference to the jury's recommendation or the trial court's sentence."See footnote
(R. at 778.) As
such, the post-conviction court concluded, the prejudice prong of the test for ineffective assistance
of counsel had not been satisfied.
We are not as willing as the post-conviction court to imply that there are circumstances in
which no quantum of evidence would be sufficient to change a jury's recommendation or a trial
court's sentence. But, as noted at the outset of part II-A, supra, we find it unnecessary to analyze
this issue in terms of prejudice. Our purpose here is not to replay Brown's trial; it is to determine
whether she was denied the effective assistance of counsel to which she was entitled. We concluded
supra that counsel did not render deficient performance with respect to the presentation of mitigating
circumstances. The fact, without more, that the additional evidence excluded by the post-conviction
court could have been presented at trial does not affect this conclusion.
Brown contends that she was denied the effective assistance of counsel to which she was
entitled when counsel failed to present evidence of Brown's borderline mental retardation in support
of his contention that Brown's confession had been involuntary. Noting that this Court gave
extensive consideration to the voluntariness of Brown's confession in her direct appeal, Brown, 577
N.E.2d at 229, the State argues that the issue is not available for relitigation here. See Ind.Post-
Conviction Rule 1(8); Canaan, 683 N.E.2d at 235; Lamb v. State, 511 N.E.2d 444, 447 (Ind. 1987);
Ingram v. State, 508 N.E.2d 805, 807 (Ind. 1987).
We agree with the State's argument that the doctrine of res judicata bars consideration of Brown's argument here. Brown's argument is essentially this: (1) her borderline retardation and mental illness (severe passive-dependent personality disorder) impacted her ability to make a knowing, voluntary and intelligent waiver of her constitutional rights in giving her confession; (2) her
lawyer was unaware of case law that holds that evidence of mental retardation is relevant and
material to determining whether or not a defendant knowingly and voluntarily waived his or her
rights; and (3) counsel's failure to know the law effectively precluded the suppression of Brown's
confession. As the phrasing of her argument suggests, a defendant's limited intelligence or mental
health alone does not render a confession involuntary. Indeed, in Colorado v. Connelly, 479 U.S.
157 (1986), the United States Supreme Court said that the purpose of the Fifth Amendment's
testimonial privilege against self-incrimination and the requirements of Miranda are to protect against
police misconduct. "Although a person's mental condition is relevant to the issue of susceptibility
to police coercion, where the person voluntarily makes a confession without police coercion the
confession may be considered in spite of the mental condition." Pettiford v. State, 619 N.E.2d 925,
928 (Ind. 1993). See Connelly, 479 U.S. at 167. Thus the issue here really turns on whether the
police conduct was coercive within the meaning of Connelly. We decided this issue on direct appeal.
Brown, 577 N.E.2d at 230 ("no inducements or threats were made by law enforcement officials to
gain the confession"). It is not available for relitigation here.
Brown contends that she was denied the effective assistance of appellate counsel to which she was entitled in several respects. As with claims of ineffective assistance of trial counsel, we analyze claims of ineffective assistance of appellate counsel according to the two-part test announced in Strickland, 466 U.S. at 668. See, e.g., Lowery, 640 N.E.2d at 1048 ("standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel"). A
petitioner claiming ineffective assistance of appellate counsel must show both deficient performance
and resulting prejudice. Roche, 690 N.E.2d at 1120. The failure to establish either prong will cause
the claim to fail. Id.
Brown first contends that her appellate counsel (who was the same as trial counsel) was
ineffective for failing to raise on direct appeal the issues discussed in parts IV-A and IV-B, infra.
These were issues, Brown points out, that counsel raised in his motion to correct errors following
trial but did not raise on direct appeal.See footnote
The post-conviction court appears to have concluded that
these contentions were tantamount to an argument "that appellate counsel did not pursue a claim in
the direct appeal that the trial court judge erred in imposing the death sentence." (R. at 765.) But,
the post-conviction court continued, "Because the Supreme Court fulfilled its independent duty to
review the propriety of the death sentence and upheld that sentence, that issue is res judicata." Id.
We find this conclusion too attenuated to affirm without further analysis.
The State points out that in the direct appeal, counsel raised five substantial errors for our review and rightly cites our opinion in Lowery to the effect that counsel is not required to raise every possible claim in a direct appeal. As we said in Lowery, counsel should exercise professional judgment and expertise in choosing the issues raised on appeal. Lowery, 640 N.E.2d at 1049. This comports with the United States Supreme Court pronouncement to the same effect _ that effective advocacy does not mandate that the appellate attorney raise each and every non-frivolous issue.
Jones v. Barnes, 463 U.S. 745 (1983). See Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) ("the
reviewing court should be particularly sensitive to the need for separating the wheat from the chaff
in appellate advocacy, and should not find deficient performance when counsel's choice of some
issues over others was reasonable in light of the facts of the case and the precedent available to
counsel when that choice was made"), reh'g denied. See also Page v. United States, 884 F.2d 300,
302 (7th Cir. 1989) ("One of the principal functions of appellate counsel is winnowing the potential
claims so that the court may focus on those with the best prospects."). Nevertheless we elect here
to address the claims on the merits.
One of the mitigating circumstances specified in our death penalty statute is the absence of prior criminal history. During the penalty phase, defense counsel questioned Dr. Suran as to whether Brown had any prior criminal history prior to her association with Coleman. Dr. Suran testified that Brown had no criminal history prior to that time. The crimes Brown committed with Coleman began in June, 1984, with the crimes that are the subject of this proceeding and then continued with additional crimes in Ohio in July of that year. In rebuttal, the State introduced evidence over the objection of Brown's counsel that Brown had been convicted of a kidnaping which occurred after June, 1984. Brown now says, "Defense counsel attempted to establish that Brown had no previous juvenile or adult criminal history prior to her crime spree with Coleman, which began in June, 1984. Admission of a kidnaping conviction which occurred after June, 1984 did not logically tend to rebut the defense evidence. Moreover, admission of [the evidence of the kidnaping conviction] impaired
the jury's ability to find the existence of, or give weight to, the [absence of prior criminal history]
statutory mitigator." Br. of Appellant at 81.
We have never been called upon to address whether evidence of crimes committed after the
offense for which the defendant is on trial is admissible in rebuttal of an assertion of absence of prior
criminal history on the defendant's behalf. While such evidence is certainly not relevant to determin
ing whether the defendant had a criminal history prior to committing the offense for which he or she
is being tried, we nevertheless believe that such evidence is relevant to determining the weight to be
given to the no prior criminal history mitigator. See generally Cozzolino v. State, 584 S.W.2d 765,
768 (Tenn. 1979) (evidence of subsequent crimes admissible in penalty phase only if it is relevant to
an aggravating circumstance or a mitigating circumstance raised by the defendant). We further note
that two of the aggravating circumstances in this case were murders committed by Coleman and
Brown (and reduced to conviction) after the date of the offenses for which she was being tried and
Brown has never raised any question as to the propriety of using these later-occurring offenses as
aggravating circumstances. If Brown has no objection to using later-occurring offenses as aggravat
ing circumstances to justify the imposition of the death sentence, the argument against the use of a
later-occurring offense as rebuttal to a claim of no prior criminal history seems far less compelling.
We find the trial court well within its discretion to admit the evidence of the later occurring offense
in rebuttal and consequently find no ineffective assistance of appellate counsel for failing to raise the
issue on direct appeal.
At the outset of proceedings in the trial court, Brown filed a motion to dismiss the death
penalty count on grounds that the Indiana death penalty statute was unconstitutional. This claim was
raised again in the motion to correct errors but not on direct appeal. Brown now argues that
appellate counsel was ineffective for failing to claim that the trial court erred by not denying the
motion to dismiss. As best as we can understand Brown's argument in this appeal, she contends that
the Indiana death penalty statute is unconstitutional for failing to give adequate guidance to the
sentencer in two respects: (1) the statute does not provide any standard of proof for finding the
existence of mitigating circumstances; and (2) the statute does not provide any guidance as to how
the sentencer is to assess the relative weight of any aggravating and mitigating circumstances found
We recently addressed the first of these claims in Matheney v. State, 688 N.E.2d 883, 902 (Ind. 1997), reh'g denied. Here, Brown argues "This capital sentencing [sic] permits the sentencer to arbitrarily apply any standard of proof to the existence of mitigators it chooses. While the sentencer might apply some low standard of proof to mitigating circumstances, it is equally likely that the sentencer might apply a standard of proof which is higher than contemplated, possibly higher than proof beyond a reasonable doubt. Furthermore, the sentencer is free to apply a completely subjective standard of proof to mitigating circumstances which effectively bars the consideration of both statutory and non-statutory mitigating circumstances." But in Matheney we said, "Without something specific in the given jury instructions which would clearly lead a jury to such a misunder
standing, a bald assertion as to what a jury is likely to presume will not suffice." Matheney, 688
N.E.2d at 902. Brown's argument is even weaker than Matheney's because the record reveals that
the trial court instructed Brown's jury, "A circumstance need not be proved, beyond a reasonable
doubt, to be considered a mitigating circumstance by you." (T.R. at 290.).
As to the second contention, we resolved the question of whether our death penalty statute
provides adequate guidance to the sentencer on the assessment of the relative weight to aggravating
and mitigating circumstances adverse to Brown's position in Miller v. State, 623 N.E.2d 403, 408-09
(Ind. 1993) (citing Fleenor v. State, 514 N.E.2d 80 (Ind. 1987)) .
Brown contends that appellate counsel was ineffective for failing to claim on direct appeal that the Indiana death penalty statute was unconstitutional as applied to Brown in this case because it failed to narrow the class of persons eligible for capital punishment. Specifically, she argues that the first aggravating circumstance alleged by the State in support of its death penalty request, that Brown intentionally killed while committing child molesting, duplicated the elements of the underly ing murder and child molesting charges. She begins by observing that the United States Supreme Court held in Lowenfield v. Phelps, 484 U.S. 231 (1988), to the effect that a legislature may achieve the constitutionally required narrowing either by defining certain murders as capital offenses or by requiring findings of aggravating circumstances at the penalty phase. Noting that Indiana has chosen the later approach, she contends that in her situation no narrowing occurred because the aggravating
circumstance charged was no different than the underlying offenses with which she was charged. As
the State properly points out, this court has previously held that such a contention misconstrues the
narrowing function of our death penalty statute:
Appellant . . . claims that the overlap between the aggravating circumstance found at
the sentencing phase and the convictions at the guilt phase violates constitutional
principles by eliminating the critical narrowing function of the sentencing process,
allowing the State to enter the penalty phase with the aggravating circumstance
already proven beyond a reasonable doubt. Our death penalty statute requires the
sentencer to find at least one aggravating circumstance beyond a reasonable doubt,
to consider and evaluate any mitigating factor it may find to exist, and to weigh the
aggravators and mitigators, finding that the mitigating circumstances are outweighed
by the aggravating circumstances, before it may impose death. This scheme ade
quately structures and channels the discretion of the jury and the court and satisfies
the ruling in Lowenfield v. Phelps[.]
Baird v. State, 604 N.E.2d 1170, 1183 (Ind. 1992).
Brown contends that appellate counsel was ineffective for failing to raise three claims of trial court error in instructing the jury.See footnote 16 Brown's assertions of ineffective assistance of counsel are conclusory in nature and not supported by any argument or authority as to deficient performance.
We find such claims waived for failure to comply with Ind.Appellate Rule 8.3(A)(7) (requiring an
appellant's brief to set forth "the contentions of the appellant with respect to the issues presented,
reasons in support of the contentions along with citations to authorities, statutes, and parts of the
record relied upon").
Brown contends that the operation of the Lake County public defender system created a
conflict of interest for her trial counsel, denying her the effective assistance of counsel. The conflict
alleged appears to be that counsel's loyalty to Brown was compromised by his loyalty to the trial
court judge who, under the Lake County scheme, appointed him. Brown also argues that Lake
County public defenders were provided insufficient resources by the judges.
Brown's claim is similar to _ though less developed than _ several claims recently rejected by this court. See Johnson v. State, 693 N.E.2d 941, 952 (Ind. 1998) (alleging systemic deficiencies in the Madison County public defender system), reh'g denied ; Roche, 690 N.E.2d at 1135 (Lake County); Games v. State, 684 N.E.2d 466, 478-80 (Ind. 1997) (Marion County), reh'g granted on other grounds, 690 N.E.2d 211 . We reach the same conclusion here. First, absent authority or cogent argument from Brown, we decline to find that any conflict of interest that might exist as a result of a trial judge appointing the public defender in his or her court rises to the level of constitu
tional violation.See footnote
Second, irrespective of whether there were problems with the Lake County public
defender system, Brown must show that her trial counsel provided deficient performance and that it
was prejudicial. Johnson, 693 N.E.2d at 953. Brown has shown neither deficient performance nor
We affirm the denial of post-conviction relief with respect to Debra Denise Brown's convic
tions for Murder and Attempted Murder and sentence of death.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
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