ATTORNEYS FOR APPELLANT             ATTORNEYS FOR APPELLEE

Susan K. Carpenter                Jeffrey Modisett
Public Defender of Indiana        Attorney General of Indiana

Kathleen Cleary                Christopher L. Lafuse
Deputy Public Defender            Deputy Attorney General
                            Indianapolis, Indiana
Robert E. Lancaster
Deputy Public Defender             ATTORNEYS FOR AMICUS CURIAE
Indianapolis, Indiana             INDIANA ASSOCIATION OF
                            CRIMINAL DEFENSE LAWYERS

                            Charles A. Asher
                            South Bend, Indiana

ALTON COLEMAN,                          )
                                             )
    Appellant (Petitioner Below              ),    )
                                             )
        v.                                   ) CAUSE NO. 45S00-9203-PD-158
                                             ) 
STATE OF INDIANA,                            )
                                             )
    Appellee (Respondent Below               ).    )

                                         

                                         

                                         

          

                                         

SHEPARD, Chief Justice.

    Tamika began crying. Coleman responded by stomping viciously on her face, chest and stomach with his foot. Afterward, Coleman and Brown carried Tamika away. Tamika's body was later discovered with a piece of bed clothing tied around her neck.

    Coleman next forced A.H. to perform oral sex on him and on Brown. While A.H. was performing oral sex on Brown, Coleman raped A.H. Finally, Coleman and Brown simultaneously strangled A.H. with their belts until she passed out. Incredibly, A.H. regained consciousness and walked out of the wooded area. A young woman and her mother noticed A.H., took her in, and eventually called an ambulance. At the hospital, doctors discovered cuts so deep in A.H.'s vaginal area that her intestines were protruding into her vagina.
Coleman, 558 N.E.2d at 1060-61.

Fleener v. State, 622 N.E.2d 140, 142 (Ind. 1993), cert. denied, 513 U.S. 999 (1994). Such a petitioner must show that the evidence, taken as a whole, "leads unerringly and unmistakenly to a conclusion opposite to that reached by the trial court." Weatherford, 619 N.E.2d at 917; see Lowe v. State, 455 N.E.2d 1126 (Ind. 1983).
    
    In the present case, the post-conviction court entered findings of fact and conclusions of law in accordance with Indiana

Post-Conviction Rule 1, § 6. When the post-conviction court enters such findings, the reviewing court "will affirm if the court's findings are sufficient to support the judgment." Lile v. State, 671 N.E.2d 1190, 1192 (Ind. Ct. App. 1996); Neville v. State, 663 N.E.2d 169, 172 (Ind. Ct. App. 1996). A post-conviction court's findings and judgment will be reversed only if clearly erroneous; "to determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom . . . ." Douglas v. State, 634 N.E.2d 811, 815 (Ind. Ct. App. 1994). In short, the question before us is only "whether there is no way the court could have reached its decision." Spranger v. State, 650 N.E.2d 1117, 1120 (Ind. 1995).

conviction court held, and the State now argues, that the issue of ineffective assistance of trial counsel was available on direct appeal, and since it was not raised then, it was therefore waived. On behalf of Coleman, amicusSee footnote 2 argues that current Indiana case law regarding the proper time for an appellant to bring trial IAC claims presents a "Hobson's choice." (Amicus Br. at 13.) The gestalt of our law on the availability of such claims has recently been scrutinized. While this case has been under review, we have decided that claims of ineffective assistance of counsel may be presented for the first time in a petition for post-conviction relief. Woods v. State, No. 06S00-9403-PD-224 (Ind., Nov. 23, 1998). Nevertheless, Coleman does not prevail on this claim, because his offers of proof do not establish ineffective assistance of trial counsel as a matter of law,See footnote 3 and the action of the trial court may be sustained "on any legal ground on the record." Cain v. State, 261 Ind. 41, 45-46, 300 N.E.2d 89, 92 (1973).

    A. Standard of Review for IAC Claims. To make a successful ineffective assistance claim, a convict must demonstrate both deficient performance and resulting prejudice. One must show his attorney's performance "fell below an objective standard of

reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984); see also Douglas v. State, 663 N.E.2d 1153, 1154 (Ind. 1996), and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996). Of course, "a different outcome but for counsel's error will not constitute prejudice if the ultimate result reached was fair and reliable." Smith v. State, 689 N.E.2d 1238, 1245 (Ind. 1997) (quoting Games v. State, 684 N.E.2d 466, 469 (Ind. 1997) (citing Lockhart v. Fretwell, 506 U.S. 364, 369-70)). We need not determine whether counsel's performance was deficient before examining the prejudice suffered as a result of the alleged deficiencies. Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
    
    Finally, counsel's performance is presumed effective. Douglas, 663 N.E.2d at 1154; Butler v. State, 658 N.E.2d 72, 78 (Ind. 1995). To be successful, Coleman's offers of proof must rebut that presumption. They do not. We will review each of Coleman's major arguments about ineffective assistance of trial counsel.

    B. Mystery Hairs. After the crime was committed, a rape kit analysis, including a pubic combing, was performed on A.H.

Sergeant Michael T. Oliver of the Indiana State Police analyzed the samples from the victim's rape kit. The kit revealed two questioned hairs, one of which was retrieved from the pubic hair combing. Oliver's first analysis of the hairs revealed that they did not belong to A.H. Oliver's second analysis revealed that the hairs were also not Coleman's or Brown's. Both reports were provided to the defense. Oliver could not recall ever being contacted by Coleman's defense counsel, nor was he subpoenaed to testify at trial. Defense counsel Lonnie Randolph vaguely recalled an assault kit having been prepared on A.H., though he could not recall whether he discussed the results with anyone at the State Police Laboratory.
    
    Given the primary theory of the defense, that Coleman did not commit the crimes, we cannot think of a reason for counsel's failure to present evidence that hairs were discovered in the rape kit which did not belong to Coleman or Brown. While one can imagine numerous explanations for the origins of the hairs that do not exculpate Coleman and/or Brown, we agree with appellant's statements that "[t]here can be no valid strategic reason for counsel's failure to present this evidence in support of their theory . . . ." (Appellant's Br. at 42.) As such, counsel's failure to present such evidence satisfies prong one of Strickland- -performance falling below an objective standard of reasonableness. Coleman's claim of ineffective assistance based on the failure to present the "mystery hair" evidence fails, however, under

Strickland's second prong--prejudice. Given the amount of evidence presented by the State against Coleman at trial,See footnote 4 we are not persuaded that defense counsel's failure to present the mystery hair evidence rendered his conviction fundamentally unfair or unreliable. Lockhart, 506 U.S. at 369.

    C. Failure to Review Discovery. Coleman argues that his defense counsel failed to review the discovery material prior to trial, or did so in only a cursory fashion. (Appellant's Br. at 44.) Coleman points to seven incidents in the trial transcript purporting to "show that counsel was not apprised of the evidence and discovery." (Id.)

    Of Coleman's seven record citations on this point, three of them, (T.R. at 486, 1085, 1129-30), may be disposed of in short order. Our review of those citations reveals that when pieces of evidence were presented by the State at trial, only one of

Coleman's two trial attorneys had reviewed the item in discovery. Coleman fails to cite any case requiring each of a party's attorneys to review every piece of discovery. Such a rule would undermine a major rationale for having more than one attorney in the first place--division of labor. As long as a member of the trial team was aware of a piece of evidence, an appellant has not established ineffective assistance by showing that not all were aware.
    
    The other instances of Coleman's trial attorneys' alleged failure to review discovery items, (T.R. at 550, 1275-76, 1887, 1910-12), also do not amount to ineffective assistance, but for different reasons. Again assuming without deciding that Coleman's trial counsel was deficient for failing to review several discovery items,See footnote 5 we proceed to evaluate whether the alleged trial errors prejudiced Coleman, as "isolated instances of poor tactics . . . do not necessarily amount to ineffectiveness of counsel." Spranger, 650 N.E.2d at 1121.
    
    Coleman complains that the failure to review these specific discovery items compromised the adversarial process at the guilt

phase of the trial. (Appellant's Br. at 40.) To prove resulting prejudice amounting to the deprivation of a fair trial, "the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the result would have been different." Spranger, 650 N.E.2d at 1121. Our review of the record leads us to conclude that these alleged failures neither compromised the adversarial process nor adversely impacted the outcome of Coleman's trial.

    D. Failure to Move for a Hair Analysis Expert. Coleman asserts that failure to request funds for an independent hair analysis expert constituted ineffective assistance. At trial, F.B.I. Special Agent Chester Blythe testified concerning a comparison between hair found at the scene and known hair samples taken from Debra Brown. Blythe testified that the hair samples were consistent with one another, and although hair analysis is not a positive means of identification, the likelihood of the hair found at the scene belonging to someone other than Brown was "very, very remote." (T.R. at 1623.) Following the trial and sentencing, the State requested that Blythe perform further analysis on the hair. During additional testing, Blythe compared the hair from the scene to both A.H.'s and Brown's hair, concluding finally that the origin of the hair from the scene could not be determined, in contrast to his original conclusion that the hair belonged to Brown.
    

(Appellee's Br. at 17-18 (footnote omitted)). Coleman has made no showing that a motion for funds, had it been made, would have been granted. In fact, our standards governing court-appointed experts indicates that such a motion likely would have been denied.
    
    As we have observed:
In Indiana, a criminal defendant is not constitutionally entitled, at public expense, to any type or number of expert [sic] he desires to support his case. Pittman v. State (1988), Ind., 528 N.E.2d 67, 71-2. A judge may authorize or appoint experts where necessary. Owen v. State (1979), 272 Ind. 122, 396 N.E.2d 376. The appointment of experts is left to the sound discretion of the trial court, Lowery v. State (1985), Ind., 478 N.E.2d 1214, 1220, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1985), and only an abuse of that discretion will result in a reversal. Hough v. State (1990), Ind. 524 N.E.2d 1287, 1288. The defendant who requests that the court appoint an expert witness had the burden of demonstrating the need for the appointment. Burgans v. State, (1986), Ind., 500 N.E.2d 183, 186. A court must provide a defendant access to experts where it is clear that prejudice will otherwise result. Palmer v. State, (1985), Ind., 486 N.E.2d 477, 481.

Kennedy v. State, 578 N.E.2d 633, 639-40 (Ind. 1991), cert. denied, 503 U.S. 921. Other Indiana cases have also applied these

standards. E.g., Harrison v. State, 644 N.E.2d 1243 (Ind. 1995); James v. State, 613 N.E.2d 15 (Ind. 1993); Bland v. State, 468 N.E.2d 1032 (Ind. 1984).
    
    One of the factors a court should consider when exercising its discretion on funding for experts is "whether the nature of the expert testimony involves precise physical measurements and chemical testing, the results of which were not subject to dispute." Harrison, 644 N.E.2d at 1253 (citing Schultz v. State, 497 N.E.2d 531, 533-34 (Ind. 1986)). Coleman's case involves precisely this type of testing, and Blythe's conclusions about the origin of the hair were not in dispute until after the trial and sentencing. During the trial, Blythe stated the possibility of the hairs belonging to someone other than Brown to be "very, very remote." (T.R. at 1623.) Coleman points to nothing to indicate that the trial court, reviewing Blythe's opinion at the time of the trial, would have found any reason to order additional testing at public expense. We find no fault with trial counsel for failing to ask for that which hindsight tells us would have been helpful.
    E. Eyewitness Identification Expert. Coleman says his trial attorneys were ineffective for failing to apprise themselves of relevant facts and law in their failed attempt to convince the court to provide funds for an expert on eyewitness identification. (Appellant's Br. at 47-50.) Counsel did file a motion for funds, including a request to pay an expert on eyewitness identification.

The motion requesting funds cited several U.S. Supreme Court cases, as well as several scholarly works on the issues surrounding and problems associated with eyewitness identification.See footnote 6 At a hearing on that motion, the court concluded that the defense had failed to meet its burden to establish the need for such an expert.
    
    At the time of Coleman's trial, Indiana courts had not determined the admissibility of eyewitness expert testimony. See Farrell v. State, 622 N.E.2d 488, 494 (Ind. 1993) (declining to rule on admissibility of eyewitness expert testimony on retrial, noting the pending Indiana Rules of Evidence to become effective January 1, 1994). Coleman now asserts that, given the unresolved nature of the admissibility issue, defense counsel should have offered case citations from other jurisdictions to guide the court. (Appellant's Br. at 48.) We think it apparent the Attorney General is correct that "because counsel made the request, supported by appropriate citations to case authority, he did not commit deficient performance for failing to persuade the court to make a discretionary ruling allowing public payment for an eyewitness identification expert." (Appellee's Br. at 19.)
    
    Furthermore, Coleman's claims that the identification

procedures "resulted in an unreliable identification" of Coleman by A.H., (Appellant's Br. at 49), were addressed and rejected by this Court in the direct appeal. See Coleman, 558 N.E.2d at 1064-65. We decline to revisit the issue here.

    F. IAC at the Penalty and Sentencing Phase. Coleman asserts that trial counsel failed to conduct a reasonable investigation into mitigating circumstances. The mitigating circumstances which Coleman claims were inadequately investigated include: evidence of his troubled childhood environment, evidence of his troubled family life, and evidence of a personality disorder and brain dysfunction. (Appellant's Br. at 63-64, 64-72, 72-77.)
    
    With regard to Coleman's childhood environment and family life, we find it unnecessary to determine whether counsel was deficient for not having investigated these matters further than they did or not having presented this evidence. Assuming Coleman's counsel was deficient in these regards, we have regarded this type of evidence to be of low mitigating weight, low enough to demonstrate lack of prejudice in Coleman's case. In Peterson v. State, 674 N.E.2d 528, 543 (Ind. 1996), cert. pending, we stated:
    Upon our independent review, we find evidence of the defendant's difficult childhood, his emotional disturbance, his having consumed some alcohol at the time of the offense, his graduation from high school, his service in the Marines, his age, and his caring relationship with his child and her mother. The mitigating weight warranted for each of these considerations is in the low range, individually and cumulatively.

for failing to present evidence that Coleman suffers from Borderline Personality Disorder (BPD) and Organic Brain Dysfunction. Coleman presented the evidence of these disorders at the post-conviction hearing. The court first found that the evidence presented by Coleman regarding the disorders would not have affected the trial outcome, stating:
The petitioner asserts that he has a diminished intelligence quotient, suffers from organic brain dysfunction, and suffers from a borderline personality disorder. He presented experts who testified that this was the fact of the matter. The state presented experts who concluded otherwise. . . . In this case, it is the conclusion of the trial court that the petitioner['s] . . . psychological composition would not have constituted a mitigating factor which would have outweighed the aggravating factors known to the jury and the trial court judge. In other words, had the judge or the jury known of the evidence which the petitioner presented at the hearing on the petition for post[-]conviction relief, it would not have made a difference to the ultimate outcome of the trial or sentencing hearing.

(P-C.R. at 1744 (emphasis added).) The court further found that

Coleman does not in fact suffer from either disorder, stating:

After considering all of the evidence which was presented at the hearing on the petition, we conclude that the petitioner does not suffer from an organic brain dysfunction. . . . We also conclude that while the petitioner may have personality traits that point to a borderline personality disorder, he does not have a disorder of that significance.
(P-C.R. at 1745.)

    As outlined in Part II above, a petitioner appealing from the denial of post-conviction relief labors under a heavy burden. We conclude that the evidence does not lead "unerringly and unmistakenly to a conclusion opposite to that reached by the trial court," Weatherford, 619 N.E.2d at 917, and that "the court's

findings are sufficient to support the judgment," Lile, 671 N.E.2d at 1192.

N.E.2d at 1065. The appropriateness of Coleman's death sentence is res judicata, and appellate counsel was not ineffective for failing to challenge trial court's findings.
    
    C. Failure to Challenge Jury Instructions. Similarly, counsel was not ineffective for failing to challenge certain jury instructions, as the jury instructions given were appropriate. Jury instructions are largely within the discretion of the trial court, and we will review a court's decisions on jury instructions only for an abuse of discretion. Nichols v. State, 591 N.E.2d 134 (Ind. 1992). To constitute an abuse of discretion, the instruction given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. Reaves v. State, 586 N.E.2d 847 (Ind. 1992).

    Coleman notes the court did not instruct the jury on the definitions of "knowingly" or "intentionally." (T.R. at 192-205, 215-36.) Generally, the use of a term of art in a jury instruction requires a further instruction explaining the legal definition of the word. Abercrombie v. State, 478 N.E.2d 1236 (Ind. 1985).
    
    As in Abercrombie, "the instructions as given did however inform the jury that guilt must rest upon a knowing or intentional state of mind." 478 N.E.2d at 1239; (T.R. at 219-22). This Court stated in that case:
Appellant did not tender a more complete instruction containing the definitions or otherwise raise the

incompleteness of instructions to the trial court. No special prejudicial effect of the omission is identified. Under the circumstances we are not persuaded the error in instructions impinged a substantial right warranting reversal.

Abercrombie, 478 N.E.2d at 1239. Coleman fails to prove any special prejudicial effect resulting from the lack of instructions on "knowingly" or "intentionally." Coleman's appellate counsel was not ineffective for failing to raise this issue.

    Coleman also claims that the instructions given the jury on the alternate ranges of punishments which could be imposed on Coleman were so grossly misleading as to constitute fundamental error. (Appellant's Br. at 143.) The court instructed the jury on the possible sentences for murder, attempted murder, and child molesting. The court also instructed the jury on the possibility for the sentences to run consecutively or concurrently. Finally, the court instructed the jury on the possibility that a portion of the sentence could be suspended for good time credit. Our review of the instructions given by the trial court leads us to the conclusion that they were a correct and straightforward statement of the law.
    
    Coleman says these instructions were misleading because there was little likelihood of a modest sentence being imposed. Such an argument to the jury would be proper. Counsel on direct appeal need not have taken the time to argue the instructions were improper on these grounds.

    A. Assignment of Book Rights. The fact that Randolph received an assignment of rights to Coleman's life story does not

present an actual conflict of interest in this case. According to the Indiana Code of Professional Responsibility in place at the time of Coleman's trial, Disciplinary Rule 5-104:See footnote 8
(B) Prior to the conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.

While Coleman does not allege a specific date Randolph received the assignment of rights to Coleman's story, Randolph testified "That didn't occur until the Illinois situation," (P-C.R. at 2452), which followed the penalty phase of Coleman's Indiana trial. Because the assignment of rights to Coleman's life story did not occur until after Randolph's representation was completed,See footnote 9 no actual conflict of interest occurred.
    
    Second, Coleman fails to demonstrate any adverse impact on his trial resulting from the alleged conflict. While he does claim that Randolph limited access to information about Coleman's life story, (Appellant's Br. at 88-90), he fails to substantiate his allegation.See footnote 10 Coleman provides no evidence that Randolph's alleged

desire to keep the childhood information from becoming public knowledge "consciously or unconsciously influence[d Randolph's] course of conduct" during trial. (Appellant's Br. at 86.)

    B. Interview with a Reporter. On May 3, 1986, the day after the sentencing hearing, a reporter interviewed Coleman at the Lake County Jail. Randolph was present. According to Randolph, Coleman insisted that Randolph be there. (P-C.R. at 2451.) Randolph testified that "the [reporter] paid me for my time." (Id.) Coleman now claims that this payment from the reporter to Randolph indicates a conflict of interest adversely affecting Randolph's representation. Rule 1.8 (f) of the Indiana Rules of Professional Conduct sanctions such an arrangement within certain guidelines:
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
    (1) the client consents after consultation
    (2) there is not interference with the lawyer's independence of professional judgment or with the client- lawyer relationship; and
    (3) information relating to representation of a client is protected as required by [the rules governing confidentiality].

    
    Coleman has not demonstrated that the payment to Randolph by the reporter interfered with the attorney's independent judgment, and given the timing of the interview, it is difficult to imagine

any.See footnote 11 Coleman fails to demonstrate that his attorney's conflict of interest denied him effective assistance of counsel.

trial, shows there was conflicting evidence.See footnote 12 The evidence supports the post-conviction court's judgment on this issue.
    
    Moreover, even if the jury had viewed Brown, the State would have been able to overcome the presumption of prejudice that would have arisen. A presumption of prejudice arises when the jury is exposed to out-of-court communications with unauthorized persons. Conrad v. Tomlinson, 258 Ind. 115, 279 N.E.2d 546 (1972). The State sought to bring Brown into the courtroom and have her stand near Coleman for the purpose of comparing their relative heights and complexions to show how they match A.H.'s descriptions, which were partially comparative in nature. The defense objected on the

grounds of relevance and possible prejudicial effect.See footnote 13 The parties debated whether the potential prejudice could be avoided by various methods, but the record reflects that the court actually sustained the objection to the showing of Brown on grounds of relevance. (T.R. at 1519 ("I don't see the probative value of her appearance here at all.").)
    
    The court's primary reason for refusing to allow the State to show Brown was relevance, suggesting that it would not tend to prove or disprove any fact at issue. We conclude that, minimally, Coleman needs to demonstrate that the jury concluded something on the basis of a hallway view to warrant relief. He has not done so.

    While we have addressed each of these issues collaterally in the context of Coleman's ineffective assistance of counsel claims, Coleman seeks review for each of these issues independently on their merits. (Appellant's Br. at 124-33, 133-39, 141-44.) Normally, the post-conviction relief process is only open to the raising of issues not known at the time of the original trial and

appeal or somehow not available to the appellant at that time. Howey v. State, 557 N.E.2d 1326 (Ind. 1990); Tope v. State, 477 N.E.2d 873 (Ind. 1985). For an issue to be available for post- conviction relief, the issue must either be unavailable at direct appeal or be framed within the context of the post-conviction rules. Tope, 477 N.E.2d at 875. Otherwise, an issue shall be deemed waived.
    
    In order to avoid the waiver of his claims regarding an expert on eyewitness identification, mental health examinations, and jury instructions, Coleman alleges that the errors on these points were fundamental, and so denied him due process of law in violation of his constitutional rights. (Appellant's Br. at 132, 133, 142.) In doing so, Coleman hopes to bring these issues under the rubric of the post-conviction rules. P-C.R. 1(a)(1). As we said of our fundamental error exception to the waiver rule in Canaan v. State, 683 N.E.2d 227, 236 (Ind. 1997), it permits direct review of only the most blatant denials of elementary due process. Our review of these claims reveals nothing of a fundamental nature.
    

Conviction Rule 1(4)(b). While a special judge was being selected, Magistrate T. Edward Page granted a motion for an extension of time made by Coleman. (Compare T.R. at 373 (date Conroy, J., assumed jurisdiction) with T.R. at 152 (date Page granted motion).) Coleman claims Page was acting under Judge Maroc's authority. Thus, he argues, the grant of Coleman's change of judge motion should have applied to Page as well, thus preventing Page from continuing to serve as magistrate in his case when Special Judge Conroy assumed jurisdiction.

    The act under which Page    received his authority stated, "The judges of the criminal division may appoint one (1) full-time magistrate under IC 33-4-7. The magistrate continues in office until removed by the judges of the criminal division." Ind. Code Ann. § 33-5-29.5-7.1 (West Supp. 1994) (amended 1995). Magistrate Page serves all judges on the criminal division, not just Judge Maroc. Thus, even if Page did serve while Judge Maroc remained the judge of record in Coleman's case, that would not disqualify Page from assisting the next judge who assumes the reigns.

    B. Constitutionality of Lake County Magistrate Act. Coleman also argues that the Lake County magistrate provision, Ind. Code Ann. § 33-5-29.5-7.1 (West Supp. 1994) (amended 1995), which created the position that Magistrate Page occupied in this case, violates multiple provisions of Indiana's Constitution. Coleman failed to allege such constitutional infirmities before the post-

conviction court, however, thus waiving them. See Bayh v. Indiana State Bldg. & Constr. Trades Council, 674 N.E.2d 176, 179 n.3 (Ind. 1996) (failure to present constitutional question at trial waives it from appellate consideration).
    

raised by five other Lake County capital post-conviction petitioners,See footnote 15 the court scheduled a single evidentiary hearing at which all six petitioners could present their evidence. (P-C.R. at 1929.) The court subsequently vacated the hearing, however, holding that this claim was not available for post-conviction review, and directed the petitioners to present their evidence as a Record of Excluded Evidence.

     Although the court stated that the systemic defects claim was not cognizable in a post-conviction hearing, the court's findings state that Coleman waived this claim. It reasoned that any such claim pertaining to trial counsel was available on direct appeal, and that the evidence as it related to appellate counsel was irrelevant because it indicated problems with the public defender system generally, rather than relating to anything specific to Coleman's case. (P-C.R. at 1745b-46a.)

    We conclude this issue was available for collateral review. First, rather than appearing in the trial record where appellate counsel could have found and raised the issue, the evidence allegedly showing systemic defects in the Lake County public defender system comes from extraneous sources, such as the testimony of former and current public defenders and experts on

public defense systems and criminal defense generally. While claims available but unraised on direct appeal can be deemed waived from post-conviction review, claims based upon evidence unavailable on direct appeal are not waived and are appropriate for post- conviction review, see P-C.R. 1(a)(4). Second, as relates to appellate counsel, although the post-conviction court used the term "waiver," it appears that the court actually determined the evidence irrelevant, and thus inadmissible. (See P-C.R. at 1746a- 46b (finding the proposed testimony of witnesses to contain "nothing about the performance of the public defenders in this case" and the report of the expert to be "conclusionary reasoning" based upon "gossip" and "guesswork").)

    We recently addressed a claim similar to Coleman's, pertaining to Marion County's indigent defense system, in Games v. State, 684 N.E.2d 466 (Ind. 1997). There we discussed "systemic defects" and United States v. Cronic, 466 U.S. 648 (1984), the seminal case on this issue, at length. See Games, 684 N.E.2d at 478-79.See footnote 16 We stated, "Cronic provides a narrow 'exception' to the traditional Strickland two prong analysis. Under Cronic, certain circumstances will negate the Strickland requirement that a defendant establish both specific errors leading to deficient performance and actual prejudice." Id. at 479. We noted that Cronic delineated three such circumstances, one of which arose when situations surrounding

a lawyer's representation are such that "'the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial,'" id. (quoting Cronic, 466 U.S. at 659-60).

    As the Supreme Court of Illinois observed when reviewing Coleman's similar allegations against Illinois' Lake County public defender office, see People v. Coleman, 660 N.E.2d 919, 936-37 (Ill. 1995), examination of the examples given in the Cronic opinion sheds further light on what this dicta in Cronic really means. See footnote 17 First, Cronic discusses Powell v. Alabama, 287 U.S. 45 (1932), as an example of a case in which circumstances surrounding a lawyer's representation were so bad that ineffectiveness could be presumed without inquiry into the actual conduct of the trial. Cronic, 466 U.S. at 660-61. In Powell,
    [t]he defendants had been indicted for a highly publicized capital offense. Six days before trial, the trial judge appointed "all members of the bar" for purposes of arraignment. "Whether they would represent the defendants thereafter if no counsel appeared in their behalf, was a matter of speculation only, or, as the judge indicated, of mere anticipation on the part of the court." [Powell, 287 U.S. at 56.] On the day of the trial, a lawyer from Tennessee appeared on behalf of persons "interested" in the defendants, but stated that

he had not had an opportunity to prepare the case or to familiarize himself with local procedure, and therefore was unwilling to represent the defendants on such short notice. The court decided that the Tennessee lawyer would represent the defendants, with whatever help the local bar could provide.
Cronic, 466 U.S. at 660.

    Second, a Cronic footnote cites Chambers v. Maroney, 399 U.S. 42, 59 (1970) (Harlan, J., concurring in part and dissenting in part); House v. Mayo, 324 U.S. 42, 45 (1945); White v. Ragen, 324 U.S. 760, 764 (1945) (per curiam); and Ex parte Hawk, 321 U.S. 114, 115-16 (1944) (per curiam), as further exemplifying instances in which surrounding circumstances would make counsel constitutionally ineffective, per se. Cronic, 466 U.S. at 661 n.28. In Chambers Justice Harlan wrote, "Where counsel has no acquaintance with the facts of the case and no opportunity to plan a defense, the result is that the defendant is effectively denied his constitutional right to assistance of counsel." Chambers, 399 U.S. at 59 (Harlan, J., concurring and dissenting). White states "that it is a denial of the accused's constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel." 324 U.S. at 764. House involved a situation where "the trial court, without warning, and over petitioner's protests, forced him to plead to the information without the aid and advice of his counsel, whose presence he requested." 324 U.S. at 45-46. Ex parte Hawk involved allegations "that the state court forced [the petitioner] into trial for a capital offense, . . . with such expedition as to deprive him of

the effective assistance of counsel . . . and that his conviction was based in part on the introduction at the trial of evidence known by the prosecution to be perjured . . . ." 321 U.S. at 115- 16.

    "[T]he burden under Cronic is extremely heavy." Games, 684 N.E.2d at 481. "[O]nly when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial." Cronic, 466 U.S. at 662 (emphasis added). We think the Illinois Supreme Court was correct that such a presumption is justified only in cases involving circumstances of similar character and magnitude as those cited as examples in Cronic. See Coleman, 660 N.E.2d at 936.

    A presumption of ineffectiveness is not justified from Coleman's proposed evidence. Even if true, the evidence only indicates problems in Lake County's public defender system generally. Coleman offers no evidence indicating that the alleged difficulties had any influence on his counsel specifically, which is the constant theme throughout the cases cited in Cronic as

examples of per se prejudice,See footnote 18 nor do we think deleterious influence can automatically be presumed.

    First, Coleman's Record of Excluded Evidence cited potential testimony from various Lake County public defenders who all testified about general conditions and personal complaints with Lake County's system. For example, Coleman intended to call Daniel Toomey, who Coleman says would have provided the following testimony:
    Because of the absence of accountability, some Trial Public Defenders spend as little time as possible preparing their cases and spend little or no time with their clients. There is no employment consequence to those Public Defenders for this conduct.
    The lack of independence creates problems because Public Defenders are employees of the judges, who are less interested in quality representation than in keeping things moving.
    . . . [C]ase loads are overwhelming and create the risk that any given case does not get nearly the attention it should. Until the promulgation of Rule 24 of the Rules of Criminal Procedure, there was no caseload reduction even while defending a death penalty case. Toomey often has 50 open felony cases.
    The public defenders treat their private clients differently than they treat their indigent clients. This is a function of caseload. There are so many public defender cases that each one receives a little less attention than it otherwise would. Public defender cases suffer from late and often insufficient preparation.

not per se a violation of the Sixth Amendment.See footnote 20

    Third, Coleman's Record of Excluded Evidence indicates that Coleman would have attempted to offer a record of testimony given by Dean Norman Lefstein of the Indiana University School of Law- Indianapolis, in a previous case challenging the Marion County public defender system. (See P-C.R. at 1482.) In this testimony Dean Lefstein concluded that that system "ought to be declared . . . unconstitutional because of its failure to safeguard the rights of the accused." (P-C.R. at 1557.) Even if testimony about the Marion County system could be relevant to Coleman's claim, this evidence, like the rest, speaks in general terms without showing how the particular public defender system influenced the attorneys in that particular case. Indeed, Dean Lefstein acknowledged that his general view of the Marion County system did not necessarily describe how individual lawyers perform:
        Q    This system that we've got here in Marion County, not only theoretically but probably practically in many cases, it can provide excellent representation, can it not, for a particular criminal defendant of a particular case?

    Because Coleman's proposed evidence did not indicate that his attorneys' representation of him was affected by the alleged defects within the system, he would have lost on this claim had it been properly adjudicated on its merits below. As the Supreme Court of Illinois said: "The general allegations in this case . . . do not demonstrate circumstances of either the character or magnitude that would give rise to a per se ineffective assistance
of counsel claim." Coleman, 660 N.E.2d at 937.

neither played a minor part in these crimes, nor acted under the domination of another, nor with the consent of the victims. In short, there is nothing apparent to detract from his culpability. Unable to see any mitigation, we are satisfied that the aggravating circumstances justify the imposition of the death penalty.

Coleman, 558 N.E.2d at 1065. At his post-conviction hearing, Coleman has offered additional evidence of his troubled childhood and alleged personality and brain disorders. As for the former, we have already stated that even had this evidence been introduced at trial, we do not believe that it would have made a difference in the sentencing outcome. See supra part III.F. As for the latter, we have already noted conflicting expert testimony regarding whether or not Coleman truly suffered from these disorders, such that he did not overcome his burden in appealing the post- conviction court's finding that no such disorders existed. See supra part III.F. Because of this conflicting evidence, and given the extreme gravity of the aggravators and strong evidence against him, the absence of this evidence from the trial court's sentencing determination does not undermine the reliability of Coleman's sentence.

and sentence were properly imposed, and his appeals were fundamentally sound.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.

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