Debra Denise BROWN
Classification: Serial killer
Characteristics: Kidnappings - Rapes - Armed robberies - Partner-in-crime of Alton Coleman
Number of victims: 8
Date of murders: May-July 1984
Date of arrest: July 20, 1984
Date of birth: November 11, 1962
Victims profile: Vernita Wheat, 9 / Tamika Turks, 7 / Donna Williams, 25 / Virginia Temple and her daughter Rachelle, 9 / Tonnie Storey, 15 / Marlene Walters, 44 / A 77-year-old man
Method of murder: Strangulation
Location: Indiana/Ohio/Illinois, USA
Status: Sentenced to death in Indiana on June 23, 1986
Debra Denise Brown is an African-American serial killer. The girlfriend and killing mate of Alton Coleman during a summer murder rampage across four states in 1984, was convicted and sentenced to death in both Ohio and Indiana.
BROWN, DEBRA DENISE # 45
ON DEATH ROW SINCE 06-23-86
DOC#: 864793 Black Female
Lake County Superior Court
Judge Richard W. Maroc
Prosecutor: Thomas W. Vanes, Kathleen O'Halloran
Defense: Daniel L. Toomey, Albert E. Marshall
Date of Murder: June 18, 1984
Victim(s): Tamika Turks B/F/7 (No relationship to Brown)
Method of Murder: ligature strangulation with bedsheet
Summary: 7 year old Tamika and her 9 year old niece, Annie, were walking back from the candy store to their home when they were confronted by Brown and Alton Coleman.
Brown and Coleman convinced them to walk into the woods to play a game. Once there, they removed Tamika's shirt and tore it into small strips which they used to bind and gag the children. When Tamika began to cry, Brown held her nose and mouth while Coleman stomped on her chest.
After carrying Tamika a short distance away, Annie was forced to perform oral sex on both Brown and Coleman, then Coleman raped her. Brown and Coleman then choked her until she was unconscious. When she awoke, they were gone.
Tamika was found dead in the bushes nearby, strangled with an elastic strip of bedsheet. The same fabric was later found in the apartment shared by Coleman and Brown. Annie received cuts so deep that her intestines were protruding into her vagina. Evidence of a remarkably similar murder in Ohio was admitted at trial. These acts proved to be part of a midwestern crime spee by Coleman and Brown that included up to 8 murders, 7 rapes, 3 kidnappings, and 14 armed robberies.
Trial: Information/PC for Murder and DP filed (11-26-84); Motion for Detainer filed (05-17-85); Initial Hearing (12-10-85); Coleman Trial (03-31-86 to 04-12-86); Voir Dire (05-07-86, 05-08-86, 05-09-86, 05-10-86, 05-12-86): Jury Trial (05-12-86, 05-13-86. 05-14-86, 05-15-86, 05-16-86, 05-17-86); Deliberations 3 hours, 37 minutes; Verdict (05-17-86); DP Trial (05-17-86; 05-19-86, 05-20-86, 05-21-86); Deliberations 10 hours, 30 minutes; Verdict (05-22-86); Court Sentencing (06-20-86, 06-23-86).
Conviction: Murder, Attempted Murder (A Felony), Child Molesting (A Felony)
Sentencing: June 23, 1986 (Death Sentence, 40 years, 40 years)
Aggravating Circumstances: b(1) Child Molesting; b (7) 2 prior murder convictions in Ohio
Mitigating Circumstances: borderline mental retardation, substantial domination by Coleman; dependent personality, general lack of aggressiveness, head trauma as a child, 21 years old at time of murder
Brown v. State, 577 N.E.2d 221 (Ind. August 29, 1991)
Conviction Affirmed 4-1 DP Affirmed 4-1
Shepard Opinion; Givan, Dickson, Krahulik concur; Debruler dissents.
Brown v. State, 583 N.E.2d 125 (Ind. 1991) (Rehearing Denied 4-1)
Shepard Opinion; Givan, Dickson, Krahulik concur; Debruler dissents.
Brown v. Indiana, 113 S. Ct. 101 (1992) (Cert. denied)
Brown v. Indiana, 113 S. Ct. 639 (1992) (Rehearing denied)
PCR Petition filed 04-08-93. Denied by Special Judge Richard J. Conroy 02-28-96
Brown v. State, 698 N.E.2d 1132 (Ind. 1990) (Appeal of PCR denial by Special Judge Richard P. Conroy)
Affirmed 5-0 Sullivan Opinion; Shepard, Dickson, Selby, Boehm concur.
Brown v. Indiana, 119 S. Ct. 1367 (1999) (Cert. denied).
Petition filed and pending in the United States District Court, Southern District of Ohio. The State of Indiana's Petition to Transfer was denied. (Brown has been incarcerated in Ohio since her 1991 convictions for Aggravated Murder in Hamilton County. Her Ohio death sentence was commuted to life imprisonment in 1991 by outgoing Ohio Governor Richard Celeste. On April 26, 2002 Alton Coleman was executed by lethal injection in the state of Ohio.)
Serial Killer - Debra Brown
"I killed the bitch and I don't give a damn. I had fun out of it."
By Charles Montaldo, About.com Guide
In 1984, at age 21, Debra Brown became involved in a master/slave relationship with habitual killer and rapist Alton Coleman and the two went on a massive killing, raping and torture spree across the midwest.
A Change in Plans
At age 21, Debra Brown ended a marriage engagement, left her family and joined Alton Coleman, a sadistic rapist and murderer. During the summer of 1984, in what her attorneys described as a slave-master relationship, the two went on a burglary, rape and killing spree in Illinois, Wisconsin, Michigan, Indiana, Kentucky and Ohio.
Targeting African-Americans, the couple would often befriend strangers, then assault, sometimes raping and murdering their victims, including children and elderly.
FBI Ten Most Wanted
On July 17, 1984, Alton Coleman became the 388th fugitive listed by the FBI on the Ten Most Wanted list. Three days later the pair were caught and a multi-state coalition of police formed to strategize on how to best prosecute Coleman and Brown. Wanting the pair to face the death penalty, authorities selected Ohio as the first state to prosecute the couple.
In Ohio Coleman and Brown were sentenced to death in each case of the aggravated murders of Marlene Walters and Tonnie Storey. During the sentencing phase of the trial, Brown sent the judge a note which read in part, "I killed the bitch and I don't give a damn. I had fun out of it."
In separate trials in Indiana, both were found guilty of murder, rape and attempted murder and received the death penalty. Coleman also received 100 additional years and Brown received an additional 40-years on charges of kidnapping and child-molesting.
Alton Coleman was executed on April 26, 2002.
Brown's death sentence in Ohio was later commuted to life because of her low IQ scores and non-violent history prior to meeting Coleman and her dependent personality, making her susceptible to Coleman's control.
Currently in The Ohio Reformatory for Women, Brown still faces the death penalty in Indiana.
Alton Coleman (November 6, 1955 – April 26, 2002) was an African-American serial killer. He was executed by the state of Ohio for the murder of 44-year-old Marlene Walters of Norwood, Ohio during a six-state killing spree in 1984.
Coleman received four death sentences from three Midwest states: Illinois, Ohio (two times), and in Indiana. At the time of his execution he was the only condemned person in the country to have death sentences in three states. His partner-in-crime, Debra Denise Brown, was originally slated to be executed in Ohio, but in 1991 her death sentence was commuted to life in prison by Governor Richard Celeste. She still has a death sentence for the murder the duo committed in Indiana. However, Brown is serving her sentence, without possibility of parole, in the Ohio Reformatory for Women in Marysville, Ohio.
During the summer of 1984, the 28-year-old Coleman and Brown, who was 21 at the time, embarked upon a killing spree through several Midwestern states.
By the time the couple were caught, Coleman was charged or wanted for questioning in assaults on at least 20 people in 13 separate attacks, including seven murders. Almost all of the victims were African-American like Coleman and Brown, but authorities said that was simply because the duo knew they would blend better in the black community, and that there was no racial motive in the murders.
Background of Coleman and Brown
Coleman was a middle-school drop-out who lived with his 73-year-old grandmother in Waukegan, Illinois, and who was well-known to the Illinois law enforcement community. The son of a prostitute who would often have sex with customers in his presence, he was charged with sex crimes six times between 1973 and 1983. Two of the cases were dismissed, and Coleman pleaded guilty to lesser charges in two and was twice acquitted. He claimed to "like it in the butt", and Coleman was scheduled to go on trial in Illinois on charges stemming from the rape of a 14-year-old girl when he fled and began his indiscriminate killing.
One of 11 children, Brown was borderline mentally retarded, suffered head trauma as a child, and was described as a "dependent personality." She was engaged to another man when she met Coleman in 1983, but left her family and moved in with him shortly afterward. Although a willing participant in the assaults and murders, Brown was never violent or in trouble with the law until she met up with Coleman.
In commuting Brown's sentence, Governor Celeste cited her low IQ scores, ranging from 59 to 74, and her "master-slave" relationship with Coleman. Brown was one of eight Ohio death row inmates to have her sentence commuted by Celeste, a staunch opponent of capital punishment, a week before he left office. Four of those whose sentences were commuted were the state's only female death row inmates.
Despite her non-violent history before the spree, Brown remains unrepentant for her acts. During the sentencing phase of her first Ohio trial, Brown sent a note to the judge which read in part: "I killed the bitch and I don't give a damn. I had fun out of it."
Details of the Murders
Their crimes began in May 1984 when Coleman befriended Juanita Wheat who lived in Kenosha, Wisconsin, and was the mother of nine-year-old Vernita. On May 29, 1984, Coleman abducted Vernita to Waukegan, Illinois. Her body was discovered on June 19, 1984 in an abandoned building, four blocks from Coleman's grandmother's apartment. The body was badly decomposed and the cause of death was ligature strangulation.
On May 31, 1984, Coleman befriended Robert Carpenter in Waukegan, Illinois, and spent the night at his home. The next day he borrowed Carpenter's car to go to the store and never returned.
In June 1984, Coleman and Brown appeared in Gary, Indiana, where they encountered two young girls, 9-year-old Annie and 7 year old Tamika Turks. Tamika's partially decomposed body was discovered on June 19, 1984. The cause of death was ligature strangulation. Annie survived, even though she was sexually assaulted by both Coleman and Brown.
The day Tamika's body was found, Coleman befriended Donna Williams, 25, of Gary, Indiana. On July 11, 1984, Williams' badly decomposed body was discovered in Detroit, about a half-mile from where her car was found. The cause of death was again ligature strangulation.
On June 28, 1984, Coleman and Brown entered the home of Mr. and Mrs. Palmer Jones of Dearborn Heights, Michigan. Palmer was handcuffed by Coleman and then badly beaten. Mrs. Jones was also attacked. Coleman ripped the Jones' phone from the wall and stole their money and car.
The day after Independence Day 1984, Coleman and Brown came to Toledo, Ohio, where Coleman befriended Virginia Temple, the mother of several children. Her eldest child was Rachelle, aged nine. When Virginia dropped out of communication with relatives, they became concerned about the children and entering the home found the young children alone and frightened. Virginia's and Rachelle's bodies were discovered in a crawl space. A bracelet was missing from the home and later was found in Cincinnati under the body of Tonnie Storey. The cause of death of both Virginia and Rachelle was strangulation.
The same morning as the murders of Virginia and Rachelle, Coleman and Brown entered the home of Frank and Dorothy Duvendack of Toledo where Coleman proceeded to bind the couple with appliance and phone cords which had been cut. Coleman and Brown took money and the Duvendack's car. One of Mrs. Duvendack's watches was stolen and found later under another victim.
Later that same day, Coleman and Brown appeared at the home of the Reverend and Mrs. Millard Gay of Dayton, Ohio. They stayed with them in Dayton and then accompanied them to Lockwood, Ohio, on July 9, to a religious service. On July 10, the Gays dropped off Coleman and Brown in downtown Cincinnati.
By this time, Coleman had come to the attention of the FBI, which on July 12, 1984, added him to its Ten Most Wanted List as a "special addition". Coleman was just the 10th person since the initiation of the list in 1950 to merit inclusion in such a manner.
Coleman and Brown bicycled into Norwood, Ohio, on July 13 at about 9:30 a.m. Less than three hours later they drove away in Harry Walters' car, leaving Harry Walters unconscious and his wife, Marlene, dead.
Harry Walters survived. He testified that Coleman and Brown inquired about a camper he had put up for sale. Walters sat on the couch as he and Coleman discussed the trailer title. Coleman picked up a wooden candlestick and, after admiring it, hit Harry Walters on the back of the head. The force of the blow broke the candlestick and drove a chunk of bone against Mr. Walters' brain. From that point on, Mr. Walters remembered little else.
Sheri Walters, Harry and Marlene's daughter, came home from work at about 3:45 p.m. and at the bottom of the basement steps, she found her father, barely alive, and her mother, dead. Both had ligatures around their throats and electrical cords tied around their bare feet. Her mother's hands were bound behind her back and her father's hands were handcuffed behind his back. Her mother's head was covered with a bloody sheet.
The coroner indicated Marlene Walters had been struck on the head approximately 20 to 25 times. Twelve lacerations, some of which were made with a pair of vice grips, covered her face and scalp. The back of her skull was smashed to pieces. Parts of her skull and brain were missing.
The living room hallway, and basement, were splattered with blood. Fragments of a broken soda bottle, bearing Coleman's fingerprints, were found in the living room. Strands of Marlene Walters' hair were found on a blood-stained magazine rack located in the living room. Bloody footprints, made by two different kinds of shoes, were found in the basement.
The family car, a red Plymouth Reliant, was gone. Money, jewelry, and shoes had been stolen. Left behind were two bicycles, clothes and shoes.
Two days later, the Plymouth showed up abandoned in Kentucky. The couple then kidnapped Oline Carmichael Jr., a Williamsburg, Kentucky, college professor and drove back to Dayton with their victim locked in the trunk of the car. On July 17, in Dayton, they abandoned this stolen vehicle and Carmichael was rescued by authorities.
Coleman and Brown reappeared at the home of Millard and Kathryn Gay. The Reverend Gay recognized Coleman, who was by this time the subject of a huge nationwide manhunt, and he and his wife were accosted with guns. The Reverend Gay asked Coleman, "Why you want to do us like that, like this," and according to Gay, Coleman responded: "I'm not going to kill you, but we generally kills them where we go." Coleman and Brown took their car and headed back toward Evanston.
On the way back home, they take time to steal another car, killing the 77-year-old man who owned it.
Capture and Trial
On July 17, 1984, Alton Coleman became the 388th fugitive listed by the FBI on the Ten Most Wanted list.
On July 20, 1984 in Evanston, illinois, someone from Coleman’s old neighborhood pulled up to a red light. As he waited for the light to change Coleman and Brown crossed the street in front of his car. He only knew Coleman casually but did recognize him. As Coleman and Brown continued walking west the witness drove north to a gas station where the police were notified.
The information was dispatched and a description of the two was broadcasted. As officers pulled into the area a detective saw Coleman and Brown sitting on probable bleachers in an empty Mason Park; but noted they were wearing different tee shirts. The detective informed the other units just as two sergeants were driving by the park. As they heard the broadcast they turned and saw the two. As Coleman was approached the officers observed Brown walking away from Coleman toward the rear of the park.
The detective joined the two sergeants and Coleman was approached for questioning. As Coleman was being interviewed, two other officers stopped Brown as she tried to exit the park. She was searched and a gun was found in her purse. Coleman had no identification and denied he was Alton Coleman. Both Coleman and Brown were taken into custody without incident and transported to the Evanston Police Department where both were identified by fingerprints.
In the police station Coleman was strip searched and a steak knife was found between two pair of sweat socks he was wearing. When taken into custody they had a shopping bag full of different tee shirts and caps. It was learned as the two walked they would stop every three to four blocks to change shirts and caps.
A week after they were arrested, more than 50 law enforcement officials from Illinois, Wisconsin, Michigan, Indiana, Kentucky and Ohio met to plan their strategy for prosecuting Coleman and Brown. Michigan, which does not have the death penalty, was quickly ruled out as the place to begin and eventually Ohio was given the first shot at the alleged spree killers.
"We are convinced that prosecution (in Ohio) can most quickly and most likely result in the swiftest imposition of the death penalty against Alton Coleman and Debra Brown", U.S. Attorney Dan K. Webb said.
Appeals and Execution
Ohio was successful in convicting Coleman and Brown on a pair of aggravated murder charges (In May 1985 for the murder of Tonnie Storey, and in June 1985 for the murder of Marlene Walters), as well as a plethora of other violent crimes. They were both sentenced to be executed and the lengthy appeals process began. Coleman's case went to the United States Supreme Court several times between 1985 and 2002, but his numerous arguments that his conviction and death sentence were unconstitutional failed to sway the justices.
By April 2002, time had run out for Coleman. His last-ditch effort to avoid lethal injection was unsuccessful when on April 25, 2002, the Ohio Supreme Court rejected a claim by Coleman's attorneys that the state's plan to accommodate the large number of victims and survivors who wanted to view the execution would turn it into a "spectator sport". There were so many victims and survivors who were allowed to witness the execution that prison officials had been forced to set up a closed-circuit viewing outside the death house.
For his final meal, Coleman ordered a well-done filet mignon smothered with onions, fried chicken breasts, a salad with French dressing, sweet-potato pie topped with whipped cream, french fries, collard greens, onion rings, cornbread, broccoli with melted cheese and biscuits and gravy. He washed it all down with a Cherry Coke.
On April 26, 2002, reciting "The Lord is my shepherd", Alton Coleman died by lethal injection in the death chamber at the state prison in Lucasville, Ohio.
Reginald Wilkinson, director of the Ohio Department of Rehabilitation and Correction, said Coleman did not convey remorse for the killings
Coleman v. Mitchell, United States Court of Appeals for the Sixth Circuit, 268 F.3d 417; 2001 U.S. App. LEXIS 21639; 2001 FED App. 0367P (6th Cir.), October 10, 2001
In re Coleman, Supreme Court of Ohio, 95 Ohio St. 3d 284; 2002 Ohio 1804; 767 N.E.2d 677; 2002 Ohio LEXIS 916, April 19, 2002
State v. Brown, Supreme Court of Ohio, 38 Ohio St. 3d 305; 528 N.E.2d 523; 1988 Ohio LEXIS 289, August 31, 1988
State v. Coleman, Supreme Court of Ohio, 37 Ohio St. 3d 286; 525 N.E.2d 792; 1988 Ohio LEXIS 212, July 6, 1988
State v. Coleman, Court of Appeals of Ohio, First Appellate District, Hamilton County, 1987 Ohio App. LEXIS 9048, October 7, 1987
Alton Coleman and Debra Brown
Accompanied by his girlfriend Debra Brown, Alton Coleman went on a six-state raping and killing spree in 1984.
Alton Coleman was born on November 6, 1955 in Waukegan, Illinois, about 35 miles from Chicago. His elderly grandmother and his prostitute mother raised him. Mildly retarded, Coleman was often teased by schoolmates because he sometimes wet his pants. This problem earned him the nickname of "Pissy" among his young peers.
Insatiable Sex Drive:
Coleman dropped out of middle school and became known to local police for commiting petty crimes involving property damage and setting fires. But with every passing year, his crimes grew from petty into more serious charges of sex crimes and rape.
He was also known for having an insatiable and dark sex drive which he sought to satisfy with both men, women and children. By the age of 19, he was charged six times for rape, including that of his niece who later dropped the charges. Remarkably, he would convince jurors that the police had arrested the wrong man or intimidate his accusers into dropping the charges.
The Mayhem Begins:
In 1983, Coleman was charged with rape and murder of a 14-year-old girl who was the daughter of a friend. It was at this point Coleman, along with his girlfriend Debra Brown, fled Illinois and began their brutal rape and murder spree across six mid-western states.
Why Coleman decided to flee this time is unknown since he strongly believed he had voodoo spirits that protected him from the law. But what really protected him was his ability to blend into African American communities, befriend strangers, then turn on them with vicious brutality.
Juanita Wheat was living in Kenosha, Wisconsin, with her two children, Vernita, age nine, and her seven-year-old son. In early May 1984, Coleman, introducing himself as a nearby neighbor, befriended Wheat and visited her and her children often over a period of a few weeks. On May 29, Wheat gave permission for Vernita to go with Coleman to his apartment to pick up stereo equipment. Coleman and Vernita never returned. On June 19, she was found murdered, her body left in an abandoned building in Waukegan, Illinois. Police also found a fingerprint at the scene which was matched to Coleman.
Tamika and Annie:
Seven-year-old Tamika Turkes and her nine-year-old niece Annie were walking home from a candy store when Brown and Coleman led them into nearby woods. Both children were then bound and gagged with strips of cloth torn from Tamika's shirt. Annoyed by Tamika's crying, Brown held his hand over her nose and mouth while Coleman stomped on her chest, then strangled her to death with elastic from a bedsheet.
Annie was then forced to have sex with both adults. Afterwards they beat and choked her. Miraculously Annie survived, but her grandmother, unable to deal with what happened to the children, later killed herself.
On the same day that Tamika and Annie were attacked, Donna Williams, age 25, of Gary, Indiana, came up missing. She only knew Coleman for a short time before she and her car disappeared. On July 11, 1984 Williams was found strangled to death in Detroit. Her car was found parked close to the scene, four blocks from where Coleman's grandmother lived.
Virginia and Rachelle Temple:
On July 5, 1984, Coleman and Brown, now in Toledo, Ohio, gained the trust of Virginia Temple. Temple had several children, the oldest being her daughter, nine-year-old Rachelle. Both Virginia and Rachelle were found strangled to death.
On July 11, 1984, Tonnie Storey, age 15, from Cincinnati, Ohio, was reported missing after she failed to return home from school. Her body was found eight days later in an abandoned building. She had been strangled to death.
One of Tonnie's classmates testified that she saw Coleman talking to Tonnie the day she disappeared. A fingerprint at the crime scene was also linked to Coleman and a bracelett was found under Tonnie's body, which was later identified as one missing from the Temple home.
Harry and Marlene Walters :
On July 13, 1984, Coleman and Brown bicycled to Norwood, Ohio, but left almost as soon as they arrived. They made a stop before leaving to Harry and Marlene Walter's home under the pretense of being interested in a travel trailer the couple was selling. Once inside the Walter's home, Coleman struck the Walters with a candlestick, bound, then strangled them.
Mrs. Walters was struck up to 25 times and mutilated with a pair of vice grips on her face and scalp. Mr. Walters, survived the attack, but suffered brain damage. Coleman and Brown stole the couple's car which was found two days later in Lexington, Kentucky.
Oline Carmichael Jr.:
In Williamsburg, Kentucky, Coleman and Brown kidnapped college professor Oline Carmichael, Jr., forced him into the trunk of his car, and then drove it to Dayton, Ohio. Authorities found the car and Carmichael still alive in the trunk.
The End of the Killing Spree:
By the time authorities caught up to the deadly pair on July 20, 1984, they had committed at least eight murders, seven rapes, three kidnapping and 14 armed robberies.
After careful consideration by authorities from six states, it was decided that Ohio would be the best place to first prosecute the pair because of its death penalty. Both were found guilty for the murder of Tonnie Storey and Marlene Walters and received the death penalty.
Brown's death sentence was later commuted by Ohio Governor Celeste.
Coleman Fights for His Life:
Coleman's appeal efforts were unsuccessful and on April 25, 2002, while reciting, "The Lord is my shepherd," Coleman was executed by lethal injection.
Killer convicted in 2 states remains behind bars in Ohio
April 9, 2002
For the past 11 years, Ohio has kept convicted killer Debra Denise Brown behind bars -- at a total cost to taxpayers of $200,000. Brown faces a death sentence in Indiana, while Ohio's case against Brown is dormant, thanks to a commutation by former Gov. Richard F. Celeste. So why is she imprisoned here?
The answer is simple: Indiana hasn't asked for her. "We can't just send her over there,'' said Andrea Dean, spokeswoman for the Ohio Department of Rehabilitation and Correction. "A request has to be made by Indiana authorities.''
Brown, 39, the girlfriend and killing mate of Alton Coleman during a summer murder rampage across four states in 1984, was convicted and sentenced to death in both Ohio and Indiana.
However, Celeste -- a death-penalty opponent -- commuted Brown's death sentence to life in prison on Jan. 10, 1991, days before he left office. Celeste said he spared Brown's life because she was retarded, had childlike emotional development and had a "master-slave'' relationship with Coleman.
Brown's death sentence for the murder of 7-year-old Tamika Turks of Gary, Ind., remains in force. She is appealing the Indiana conviction in U.S. District Court in Columbus. Indiana officials are prosecuting the case; Brown's attorneys are court-appointed public defenders from out of state. Indiana officials, including former Gov. Evan Bayh, said immediately after Celeste's commutation that they planned to file a request to extradite Brown.
However, that never happened, perhaps in part because of criticism about the cost of bringing Coleman and Brown to Indiana for trial in 1986 after Ohio already had convicted them of murder.
"Ohio has a lawful right to hold her as well as Indiana,'' said Pam Pattison, spokeswoman for the Indiana Department of Correction. "There has been discussion about bringing her back to Indiana. Ohio kept her,'' Pattison said.
She offered no reason why Indiana has not extradited Brown. Brown is incarcerated at the Ohio Reformatory for Women in Marysville at an annual cost now figured at $22,014.
If Brown were shipped to Indiana, she would be housed at the Indiana Women's Prison in Indianapolis where Indiana taxpayers would pick up the annual cost of $19,374. Coleman's execution has been set for April 26 at the Southern Ohio Correctional Facility near Lucasville.
He was sentenced to die for the murder of Marlene Walters of Cincinnati. The case is being appealed. Although Coleman and Brown were close at the time of the murders in 1984, they no longer communicate or have any kind of relationship, one of Coleman's attorneys said.
Alton Coleman & Debra Brown: Odyssey of Mayhem
By Mark Gribben - The Crime Library
Maybe people shouldn’t be surprised that a boy who had to endure the nickname “Pissy” because of a tendency to wet his pants would grow up to be one of America’s most savage spree killers.
And it certainly didn’t help that Pissy would go to prison on a robbery charge and emerge two years later with a tendency to dress in women’s clothing and a desire for rough sex.
Whatever the reasons, Alton Coleman and his girlfriend Debra Denise Brown will go down in history as a short-lived U.S. version of Great Britain’s multiple sex-slayers Myra Hindley and Ian Brady.
The story of Coleman and Brown begins in the mid-1970s, takes place in five states and involves one of the largest manhunts in recent history.
It is a tale of American criminal justice that stands among the most depraved and cruel incidents of the modern age -- Coleman and Brown demonstrated a lack of respect for human life that shocked even hardened FBI agents and police officers.
In less than two months, they assaulted, raped and murdered their way from Illinois to Michigan and down to Kentucky before authorities were finally able to capture then.
Coleman and Brown are behind bars, each awaiting a date with the executioner, but the evil they wrought upon their innocent victims lives on to this day. The duo have used every avenue of judicial appeal possible and seek mercy from the courts – mercy they rarely showed when they prowled the Midwest.
With every new court ruling or delay, dozens of survivors relive the horror of their encounters with the murderous pair of lovers.
A child victim who managed to avoid death at their hands vows that she will never marry because of her inability to trust and questions whether she is still “pure”. Another survivor battles drug addiction, suicide attempts, and post-traumatic stress disorder.
A mother and father must adjust to the fact that Coleman will never stand trial for their daughter’s murder and they may never find out the circumstances surrounding her slaughter.
Coleman’s family, on the other hand, consider themselves victims – not of their deadly relative, but of a system that they believe persecutes and plans to kill an innocent man. Debra Brown's mother continues to rue the day her daughter met Alton Coleman.
Brown was “a good girl,” unknown to police before she fell under Coleman’s spell, but by the time the pair were caught, it was clear that Brown was just as vicious and murderous as her ex-con boyfriend.
Probably what is most disturbing about Alton Coleman is that he shouldn’t have been on the streets to begin his rape- robbery -murder spree. Over and over Coleman managed to manipulate the judicial system in his favor, beating sexual assault charges on several occasions.
Frustrated prosecutors and lawmen knew they had a monster on their hands, but could only stand by helplessly as jury after jury let the him walk, confident the system had “worked” to free an innocent man.
A Boy Called "Pissy"
Born in Waukegan, an Illinois town about a half-hour’s drive north of Chicago, Alton Coleman endured the taunts of schoolchildren who teased him because he so often wet his pants. They christened the mildly retarded boy “Pissy.”
Family members and law enforcement officials who had dealings with Coleman since his teen years said Alton was slow to show emotion and generally kept to himself.
Clearly alienated from his peers, Coleman had a reputation for his strong sex drive – reportedly he was bisexual and willing to engage in sex any time, any place with anyone. Said one friend of Coleman’s late mother: “He knew he was different… even as a young child. “As he grew up, (Coleman) was deeply into insidious kinds of sexual gratification.”
Coleman first came to the notice of police as a teenager when he was picked up for breaking windows in his Waukegan housing project. He was quickly labeled as a troublemaker, but for the most part, his crimes were of the petty sort.
There was little indication to authorities of the mayhem to come. Interestingly, property damage, often in the form of arson, can be an indicator of serial murder tendencies. That is not to say that every youngster who breaks windows or lights fires is bound to be a serial killer, but only that many multiple murderers committed similar acts as children.
On the way to becoming a serial killer, Coleman gave the law many chances to put him away, but Alton was “smooth as silk,” according to those who fought him in court. Lawmen said Coleman put on a good appearance in court which often convinced jurors that authorities had the wrong man.
Alton, according to friends, also relied upon the supernatural to help him escape justice. He claimed that voodoo made him invulnerable to attack by the law.
“He was good at conning jurors,” Waukegan Police Lt. Marc Hansen told the Detroit Free Press in 1984 when Coleman and Harris were hiding out in Detroit. “He tells a convincing story in court. People are impressed with his testimony. He comes off as a decent person.”
A prosecutor who watched Coleman beat a rape charge agreed. “He knows what kind of case holds up in court and which ones don’t,” said former U.S. attorney Fred Foreman. “He’s been to the penitentiary. He’s a career criminal”
But when the façade wouldn’t work and voodoo god Baron Samedi wasn’t listening, Coleman resorted to more common forms of beating the rap, most notably witness intimidation. “It’s difficult to get people in court to prove these charges because they are sexual assault charges, they involve kids, they involve family that don’t want to see him go to jail,” said Hansen.
In 1983, Coleman’s sister went to authorities and told them her brother tried to rape her eight-year-old daughter. Three weeks later, she went to court to have the charges dropped. “It’s a misunderstanding,” she said. “A lot of families go through that. It doesn’t make any difference now.”
The judge hearing the motion for dismissal was astounded by the 25-year-old woman’s testimony “I think the woman as she stands here today, is terrified of this man,” the judge said. He called her account of the incident “completely implausible.” But in the end, with no victim and no witnesses, the judge had no choice but to free Alton Coleman and dismiss the charges.
Coleman’s rap sheet before his Midwestern spree reads like a one-man sex crime wave. In 1973 he and an accomplice kidnapped, robbed and raped an elderly woman.
She refused to testify about the rape and Coleman served two years on the robbery charge. Three months after his release from Joliet, Coleman was arrested for another rape. He was acquitted but served time for a lesser charge. Four years after that spell in the pen, Coleman was acquitted of rape.
A year later he was arrested for an attempted rape – the charge was dismissed. In July, 1983 he was charged with the rape of his niece. That charge was dismissed. In early 1984 he was indicted for the knifepoint rape and murder of a suburban Chicago girl whose mother was a friend of his.
Coleman learned he was wanted for that crime but disappeared, kicking off his multi-state crime spree with his girlfriend, Debra Brown.
Odyssey of Mayhem
Why Alton and Debra went underground is still a mystery 15 years after they were arrested. Police blamed Coleman’s “intense hatred of blacks,” but longtime friends dismissed that reason as absurd.
The pair’s victims were mostly black because they were in the wrong place at the wrong time. Coleman stayed in traditionally black neighborhoods because they provided a place for him to hide.
“That sounds so crazy to me,” said one Waukegan public official who knew Coleman since “he was in diapers.” “Why does he victimize blacks? Black neighborhoods are the logical place for him to go. If he went into a white community, they would have found him long ago.”
A friend of the family said Coleman could not deal with his homosexual tendencies. “He used to dress up like a woman a lot. It was well known that he had different habits than a normal male,” the friend said.
Coleman is a classic “disorganized serial killer.” He rarely stalked a particular victim, but instead lashed out at whomever was nearby.
He used whatever tools he had handy to kill or incapacitate his victims and there did not appear to be any ritual to his violence.
What probably set him off was the realization that he no longer had anything to lose. Perhaps the indictment on the aggravated rape and murder charges – which could have brought the death penalty – were enough to finally push him over the brink to whatever madness prompts such violence.
While the pair was on the run, Coleman was indicted on murder charges in Wisconsin and a federal warrant was issued for his capture.
Regardless of the motivation, Coleman and Brown began their spree on June 5, 1984 when the pair rented an apartment in Gary, Ind. Coleman had been wanted by police since May 31 and Debra Brown had been interrogated about his disappearance June 1.
The pair laid low for two weeks until June 18 when two young girls, Tamika Turks and her 9-year-old aunt disappeared on their way to a candy store. Later that day, the 9-year-old was found beaten and raped. Tamika was missing.
A day later, Tamika's badly ravaged body was found in a wooded area in Gary. She had been raped and killed by someone stomping on her chest.
The older girl was forced to watch as the pair killed Tamika – Brown holding Tamika to the ground and covering her nose and mouth and Coleman jumping on her chest and face until her ribs fractured and punctured her vital organs.
The older girl then was forced to have sex with both Brown and Coleman before being beaten about her head. To this day the young woman suffers severe headaches and screaming fits.
“She will get to screaming and crying like someone is hitting her on the back of the head,” said Mary Hilliard, the child’s mother. Her injuries left the family with $15,000 in medical bills, which were substantially, but not completely covered by insurance.
LaVerne Turks, Tamika’s mother, was forced to move to Minneapolis because the memories of Tamika in Gary, Indiana, were too painful. “LaVerne’s gone. Tamika’s missing. My daughter is having these problems. Our family will never be the same,” said Hilliard, who attempted suicide shortly after her granddaughter’s death.
The same day Tamika's body was discovered, Donna Williams, 25, was reported missing by her parents. Her car was stolen, as well.
A week later, Williams’s car was found abandoned in Detroit with a forged identification card featuring Brown’s picture. Residents from the area said the car had been parked in the alley since June 19.
Police in four states were now looking for the pair, working on the assumption that Donna Williams had been murdered, even though her body had not been found.
In the meantime, two days after Williams was reported missing, a Detroit woman was kidnapped by a man and woman whom she later identified as Coleman and Brown. She escaped while driving the pair to Toledo by purposefully ramming her car into oncoming traffic.
Coleman and Brown were able to survive by befriending good Samaritans and later turning on their friends, authorities said. “We’ve come to the conclusion that Coleman and Brown are staying with people they meet,” said FBI Special Agent John Anthony in Detroit. “They spend a day or two with the people, get a little money gambling with them and then assault and rob them and steal their car.”
While in Detroit, Coleman and Brown eluded police while instigating a small, but violent, crime wave. Warrants for their arrest were issued for the kidnapping and robbery of the 28-year-old Detroit woman who managed to escape the killers, a June 28, 1984 robbery and beating of an elderly Dearborn Heights couple and the June 30 robbery of two Detroit men.
By the time the deadly duo left Detroit, police in Illinois, Wisconsin, Indiana, Ohio and Michigan, as well as federal authorities, were on the lookout.
Despite Coleman’s disorganized pattern of murder, there were some similarities among the crimes – in every case the cars stolen by Coleman and Brown were recovered within 12 hours.
When authorities were not able to locate a 1975 Buick stolen by the pair after they beat and robbed a 55-year-old woman and her companion, they had good reason to suspect that Coleman and Brown had left the Motor City.
Sadly, even though the pair had fled to Toledo, the evidence of their crimes continued to surface. In an abandoned house near Wayne State University in Detroit, the badly decomposed body of Donna Williams was found on July 11. It was clear that she hadn’t lived long after she arrived, as a hostage, in Detroit.
There will likely never be any closure – legal or psychological – for the family of Donna Williams. When authorities gathered to determine the best course of action against Coleman and Brown, the Williams case was not tried.
“We chose to go with the strongest cases against the two that would result in the death penalty,” said Lake County, Indiana prosecutor Jack Crawford. “It appeared that Williams was killed in Michigan, which does not have the death penalty.”
For Robert and Zenota Williams, Donna’s parents, punishment is not foremost on their minds. “I will always wonder what, exactly, happened,” Zenota Williams told the Detroit Free Press in a retrospective on the spree three years later.
Three other homicides tied to the pair will also probably not ever be tried: the slaying of 77-year-old Eugene Scott of Indianapolis and the killings of Virginia Temple and her 10-year-old daughter in Toledo.
Scott was suspected of being their last murder victim because his car was found in Evanston, Ill. where they were arrested.
From Toledo, the pair continued south, stopping long enough in Cincinnati to murder Marlene Waters, who was found bludgeoned to death in the basement of her home.
Waters’ husband was badly beaten in the attack and left for dead. Coleman and Brown stole the Waters’ car and headed to Lexington, Ky., where they abandoned the car in a cornfield.
In nearby Williamsburg, the duo kidnapped Oline Carmical and drove to Dayton, Ohio leaving Carmical locked in the trunk of his car. An elderly Dayton couple was found beaten and gagged in their home after the fugitives stole their car. Another Dayton couple reported to police that Coleman and Brown robbed them.
The trip from Tamika Turks’ murder to the crimes in Indianapolis took less than a month, with the pair committing felonies on the average of crime every other day. In all, the murderous 53-day rampage – from the time Coleman raped and murdered the 9-year-old in Kenosha, Wis., to the time they were arrested in Illinois -- resulted in a slew of felonies: eight homicides, as many as seven rapes, three kidnappings and 14 armed robberies.
Some time after the murders of the Temples and Scott, Coleman and Brown returned to the Waukegan area. Their case had inspired a great deal of notoriety across the country and Coleman had recently been named as a “special addition” the FBI’s 10 Most Wanted list.
In becoming a special addition, Coleman joined such notable felons as H. Rap Brown and Martin Luther King’s murderer, James Earl Ray.
Coleman’s family aside, they had few friends left after their spree and it wasn’t surprising that when an acquaintance of Coleman’s saw the pair walking near Evanston, Ill., he would turn them in. Authorities had been watching Evanston closely because of Coleman’s known associates there and the fact that the duo had rented an apartment in Evanston prior to fleeing to Gary.
Knowing that there were few criminals as desperate as Coleman and Brown, authorities were cautious in making the arrest.
Once police pinpointed their location – the pair was spotted by undercover officers in a local park – state, local and federal authorities began to converge on the couple.
Shortly before noon on July 20, 1984 Coleman and Brown were watching a pick-up basketball game from the bleachers at Mason Park on the west side of Evanston as officers began to approach.
Coolly, as if he hadn’t a care in the world, Coleman began walking away as plainclothes and uniformed cops neared. Wearing a torn yellow shirt and sporting a short haircut unlike the jheri-curl ‘do he wore in published photos, Coleman surrendered peacefully when confronted. “You got the wrong man,” he told arresting officers. He provided two aliases and Brown identified herself as “Denise Johnson.”
She was carrying a loaded revolver and Coleman had a long knife hidden in his boot, but neither went for their weapon.
“They looked like they did on TV,” said an 11-year-old who witnessed the arrest. “The capture was quick and easy.”
Although there were some holes in the authorities’ investigation, it was clear that they had been expecting the two-person crime wave to return to Evanston. Neighbors in the area said they had heard for three weeks that Coleman and Brown would eventually turn up there.
The mood of the neighbors was as jubilant as that of police who clearly basked under the media spotlight. “There was a community awareness about him,” said one neighbor. “He wasn’t going to be able to come in here and snatch anybody. We were waiting for him.”
Residents of the Mason Park area told the media that Coleman looked tired and emaciated when arrested and they speculated that the lethal duo had “just run out of steam.”
Law enforcement officials thought along similar lines with one officer wondering if they had unconsciously wanted to do so: Coleman had never worried about leaving fingerprints at his crime scenes, and FBI agents said he was so lackadaisical it was almost as if he was trying to leave a calling card.
Those same fingerprints would eventually do in Alton Coleman. Despite his protests that officials had the wrong man, Evanston police were able to positively identify the man arrested in Mason Park as the man who left fingerprints at crime scenes in Wisconsin, Illinois, Indiana, Ohio, Michigan and Kentucky. Fingerprints on file with the FBI conclusively proved that the suspects in custody were Coleman and Brown.
With Coleman and Brown in custody, the problem fell to state and federal officials to untangle the slew of accusations against the couple and to decide which cases to prosecute. It was clear from the outset that the most punitive states would have first shot at the pair.
That meant capital crimes committed in Michigan and Wisconsin, which have no death penalty, would be tried last – if at all. “We want him first,” said Lake County DA Fred Foreman. “I’ve been in court with this man before and I want to bring him back.”
Brown and Coleman were separated by police and Debra, easily the most wanted woman in the country, was advised of her constitutional rights. She immediately invoked her right to remain silent and asked to speak to an attorney.
In the Evanston police station, the FBI agent who administered the Miranda warning continued to ask Brown questions about her identity – things like her name, age, birth date, and address, according to court documents. An Evanston detective questioned Brown as well, seeking clues to an attack in his jurisdiction for which the pair was suspected.
When the time came to transport Brown to the federal lockup, she spoke with agents on the trip to Chicago. Arriving at the federal building, she was once again advised of her rights and she once again refused to sign a waiver. She did, however, agree to talk to officers as long as she could stop when she wanted to.
Over the next two and a half hours, Brown discussed the crime spree in detail, in effect confessing to many of the crimes committed during the brief, but violent odyssey across the upper Midwest.
When she finished, she once again asked to speak with an attorney. No further inquiry was made until after Brown spoke to a lawyer.
During trial, Brown’s attorney protested that her Fifth Amendment right – the right against self-incrimination – was violated because authorities continued to interrogate after she had asked for counsel.
The trial court found that the Evanston detective did violate her rights and the evidence from his questioning was ruled inadmissible.
However, the confession given to federal authorities in Chicago was used in the trial and with it conviction was easily obtained.
Brown was sentenced to die for the murder of Tamika Turks. Later, Brown was sentenced to die for the Cincinnati murders, but she continued to be held on Indiana’s death row.
Coleman was convicted of the same murders and also sentenced to die. In January 1991 the governor of Ohio commuted Brown’s death sentence, saying she was retarded and “dominated by” Coleman. She is now serving two life sentences in Ohio for her crimes there. However, Indiana is not finished with her.
It took almost seven years, but in August 1991 the Indiana Court of Appeals ruled that the trial court had not erred by allowing the confession into evidence. The conviction and death sentence would stand.
The appeals court found that despite her repeated attempts to speak to an attorney, the confession was separated by “space, time and subject matter” from her first request for counsel that it was proper. Brown willfully gave the confession, the court noted, after being advised of her rights.
Interestingly, it was Brown’s conversations with authorities while she was being transported to federal custody that created the loophole which could result in her execution. She asked questions like “where am I going?” and “what am I charged with?”
Criminal defense attorneys fumed at the court’s decision, with one saying to the Indianapolis Star that the Fifth Amendment was being “squeezed to death.” “If you ask anything, you create an opening the state can drive a truck through,” said Daniel L. Toomey, who argued Brown’s case before the Court of Appeals. Today, Debra Brown, the only woman on Indiana’s Death Row, is serving out her sentences in Ohio. Whether or not she will ever see the executioner in the Hoosier State remains up in the air.
Alton Coleman is on Indiana’s death row, but he also won a small, but significant, court victory recently. In August 2000, ruling in a Virginia capital murder case, the U.S. Supreme Court said a murder defendant is entitled to constitutionally adequate legal representation.
Coleman’s attorneys immediately filed for relief under the high court’s ruling and the Court ordered the Indiana Supreme Court to reconsider Coleman’s death sentence.
Coleman alleged that during the sentencing phase of his trial his counsel was inadequate and did not bring up mitigating factors that might have spared Coleman from a trip to the electric chair. Alton suffered from a troubled childhood, a personality disorder and brain dysfunction, attorneys said.
The Indiana high court had already upheld his conviction and sentence on direct appeal. “Given these aggravating circumstances, even had his counsel presented the evidence of Coleman’s impoverishment and abuse, we see little likelihood the jury recommendation or the trial judge’s sentence would have been different,” wrote the Chief Justice of the Indiana Supreme Court.
Even if the state of Indiana spares Alton Coleman, there are any number of prosecutors who are still awaiting a crack at him.
The chances of Coleman, or for that matter, Brown, ever seeing the outside of a prison cell are slim. If Indiana takes a pass on Coleman, then Ohio wants its turn, and if the Buckeye State spares his life, then it’s on to Kentucky.
Odds are that Alton Coleman, somewhere down the line, will pay for his crimes with his life.
Chicago Tribune, July 22, 1984, “Police Bask In Glory Of Fugitives' Arrests”
Detroit Free Press:
June 28, 1984, “FBI, Police Search For Slaying Suspect”
July 4, 1984, “Unsuspecting Residents Aid 2 Fugitives, FBI Says”
Friday, July 6, 1984, “Mother Fears 'Some Kind Of Spell'”
July 15, 1984,“Mother Frets For Daughter With Fugitive”
July 15, 1984, “Alton Coleman 'Smooth As Silk': Police Say Fugitive Has Frustrated Justice”
July 21, 1984, “Alton Coleman Held In Illinois: Bond Set At $25 Million Cash”
July 21, 1984, “The Chase For Alton Coleman”
February 13, 1987, “1984 Midwest Crime Spree Continues To Exact Price In Pain”
August 30, 1991, “Murder Spree Conviction Upheld”
November 17, 1991, “Confession From A Killer: Did Police Cross The Line?”
February 3, 1998, “Lone Woman On State's Death Row Is In Ohio”
April 25, 2000, “High Court Edict May Aid State Death Row Inmate: Justices Tell Court To Restudy Sentence Of Murderer Who Claims He Received Ineffective Legal Counsel".
Supreme Court of Indiana
Brown v. State
Debra Denise BROWN, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
July 17, 1998
Susan K. Carpenter, Public Defender, Indianapolis, Ken Murray, Columbus, OH, Janet S. Dowling, Evans, Dowling & Youngcourt, P.C., Indianapolis, for Appellant.Jeffrey A. Modisett, Attorney General, Christopher L. LaFuse, Deputy Attorney General, Indianapolis, for Appellee.
Petitioner Debra Denise Brown appeals the denial of post-conviction relief with respect to her convictions for Murder 1 and Attempted Murder,2 and her sentence of death.3 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, 113 S.Ct. 101, 121 L.Ed.2d 61 (1992). We now affirm the denial of post-conviction relief.
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, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (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, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 undisclosed 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, 115 S.Ct. 1555. 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.4
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 circumstances 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.5 Acting under the influence of an extreme emotional disturbance is another statutory mitigating circumstance.6 And the mental health of the defendant is frequently considered as a mitigating circumstance under the “catch-all” mitigator.7 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 completely under the control of Coleman.
(R. at 1894-96.) 8 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 personality. Then a Dr. Periolet, another psychiatrist who had examined Coleman, testified that one characteristic 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 something by herself.
Next counsel called a Dr. Kelly, a psychiatrist, who testified as to the results of his examination of Brown. Dr. Kelly had examined Brown twice and also discussed the results of his examination 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 personality 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 examination 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, depression, 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 childhood 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 evidence 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 Defendant 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 devoted 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 inadequacies 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, including 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.9 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 pronouncing sentence.
In a related argument, Brown contends that the FBI wrongfully denied her access to a substantial quantity of documents concerning her case.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 information 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, 115 S.Ct. 1555.
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 information 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, 51 Cal.3d 1179, 275 Cal.Rptr. 729, 800 P.2d 1159, 1206 (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, 148 N.J. 89, 690 A.2d 1 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind.1997), reh'g denied, cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (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.11 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 concluded 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 committed 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.12 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.13
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 personality 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 four items:
1. The testimony of a Mr. See, a Cleveland-based executive of an offender re-entry program with experience as a witness concerning mitigating circumstances, which was “offered to show the social, racial and cultural environment 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 sustained, 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 relationship 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.” 14 (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, 107 S.Ct. 515, 93 L.Ed.2d 473 (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, 107 S.Ct. 515. 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, 104 S.Ct. 2052. 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.15 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, 103 S.Ct. 3308, 77 L.Ed.2d 987 (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 determining 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 aggravating 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 to exist.
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 misunderstanding, 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 underlying murder and child molesting charges. She begins by observing that the United States Supreme Court held in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (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 adequately 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.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 constitutional violation.17 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 prejudice.
We affirm the denial of post-conviction relief with respect to Debra Denise Brown's convictions for Murder and Attempted Murder and sentence of death.
1. Ind.Code § 35-42-1-1 (1982).
2. Ind.Code §§ 35-41-5-1 & 35-41-1-1 (1982).
3. Ind.Code § 35-50-2-9 (Supp.1983). Unless otherwise indicated, references to Ind.Code § 35-50-2-9 refer to the version published in the 1983 Supplement to the Indiana Code, the death penalty statute in effect at the time the crimes at issue were committed.
4. Following oral argument in this case, Brown filed a motion seeking “judgment on the arguments and concessions of the State.” She contends that certain statements made by the deputy attorney general arguing the case concerning the FBI material “effectively conceded error of constitutional magnitude.” Appellant's Verified Motion for Judgment on the Arguments and Concessions of the State (July 25, 1997). To the extent the State made any concessions in this regard, the State most assuredly did not concede that the FBI documents introduced at the post-conviction proceeding “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 v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Appellant's motion is denied.For many years in capital cases, this Court has greatly appreciated and valued the willingness of the State to acknowledge the legitimacy of contentions made by criminal defendants and weaknesses in its own cases. Brown's attempt to turn into an admission of constitutional error the State's longstanding policy of forthright and candid discussion of the issues is not well taken.
5. Ind.Code § 35-50-2-9(c)(5) (“The mitigating circumstances that may be considered under this section are as follows: ․ The defendant acted under the substantial domination of another person.”).
6. Ind.Code § 35-50-2-9(c)(2) (“The mitigating circumstances that may be considered under this section are as follows: ․ The defendant was under the influence of extreme mental or emotional disturbance when he committed the murder.”).
7. Ind.Code § 35-50-2-9(c)(7) (“The mitigating circumstances that may be considered under this section are as follows: ․ Any other circumstances appropriate for consideration.”).
8. Citations to the record of post-conviction proceedings are denominated as “R.”; to the trial record as “T.R.”
9. The post-conviction court also concluded that this evidence did not constitute exculpatory evidence and that there was no evidence before it that established that the information in question was ever in the possession of the State. We find it unnecessary to address these findings.
10. Brown represented to us that she pursued, in a timely manner, all available agency and administrative appeals and that these appeals were denied. Appellant's Verified Motion to Compensate and Authorize Counsel to Pursue Necessary Collateral Litigation (Dec. 20, 1996). She then sought a mandate from this court for funds to litigate a Freedom of Information Act claim against the FBI in federal court. We denied this request by Order dated January 6, 1997.
11. The post-conviction court excluded some of this evidence. Brown's claim of error in this regard is discussed in part II-B, infra.
12. While Brown asserts that she was the victim of Battered Women's Syndrome in her post-conviction appeal brief, she points us to no evidence presented to the post-conviction court that actually uses the term “Battered Women's Syndrome.”
13. We note in this regard Brown's use of the adverb “fully” to describe counsel's alleged deficient performance, e.g., “Trial counsel's failure to fully investigate, develop and present penalty phase evidence denied Brown the effective assistance of counsel.” Br. of Appellant at 51 (emphasis supplied).
14. As Brown points out, there is language in the post-conviction court's findings and conclusions that suggests that although the post-conviction court announced during the proceedings that the additional evidence of mitigating circumstances was being excluded, the court did take it into account in its findings. See Br. of Appellant at 92.
15. At the time of Brown's direct appeal, raising an issue in a motion to correct errors was a prerequisite to appellate review.
16. Brown also challenges these and an additional instruction as erroneous. Claims of trial court error in instructing the jury not raised on direct appeal are not available for post-conviction review unless the failure to raise them was the result of ineffective assistance of counsel or, perhaps, unless they constituted fundamental error. Although Brown refers to these instructions as “fundamentally erroneous” in the caption to the relevant section of her brief, the narrative portion of that section makes no effort to demonstrate fundamental error. We find such claims, even if available under the fundamental error doctrine, waived for failure to comply with Ind.Appellate Rule 8.3(A)(7).
17. The conflict of interest present in the sole case cited by Brown involved two lawyers jointly engaged to represent three co-defendants at separate trials. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Such a conflict is, of course, very different from the one Brown asserts.
SHEPARD, C.J., and DICKSON, SELBY and BOEHM, JJ., concur.