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
864793 Black Female
Judge Richard W. Maroc
Prosecutor: Thomas W. Vanes,
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
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
Conviction: Murder, Attempted
Murder (A Felony), Child Molesting (A Felony)
Sentencing: June 23, 1986
(Death Sentence, 40 years, 40 years)
b(1) Child Molesting; b (7) 2 prior murder convictions in Ohio
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
Brown v. State, 583 N.E.2d 125 (Ind.
1991) (Rehearing Denied 4-1)
Shepard Opinion; Givan, Dickson, Krahulik concur; Debruler
Brown v. Indiana, 113 S. Ct. 101 (1992)
Brown v. Indiana, 113 S. Ct. 639 (1992) (Rehearing denied)
PCR Petition filed 04-08-93. Denied by Special Judge Richard J.
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
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 -
"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
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
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
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
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
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
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
"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,
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
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
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
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
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
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
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
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
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
"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
By Mark Gribben - The Crime
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
“They looked like they did on TV,” said an
11-year-old who witnessed the arrest. “The capture was quick and
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
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
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
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
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
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
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
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
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
(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
1. Brown's father had severe mental problems,
drank to excess, and physically abused family members including
2. Brown had experienced a drug overdose which
required hospitalization in 1980 and may have been using drugs
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
Two statements from Dr. Suran's testimony bear
[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
(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
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
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
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
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
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
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
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
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
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
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
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.
§ 35-42-1-1 (1982).
§§ 35-41-5-1 & 35-41-1-1 (1982).
§ 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.
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.
§ 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.”).
§ 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.”).
§ 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.”).
to the record of post-conviction proceedings are denominated as
“R.”; to the trial record as “T.R.”
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.
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,
post-conviction court excluded some of this evidence. Brown's
claim of error in this regard is discussed in part II-B, infra.
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.”
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).
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.
the time of Brown's direct appeal, raising an issue in a motion to
correct errors was a prerequisite to appellate review.
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).
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,