Coleman v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Karen M. Freeman-Wilson

Public Defender of Indiana Attorney General of Indiana

Kathleen Cleary Christopher L. Lafuse

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana

Robert E. Lancaster

Special Assistant to the

Public Defender

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

ALTON COLEMAN, )

)

Appellant (Defendant Below), )

)

v. ) No. 45S00-9203-PD-158

)

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Richard J. Conroy, Special Judge, with

Magistrate T. Edward Page, Presiding

Cause No. 1CR-203-1184-842

December 29, 2000

SHEPARD, Chief Justice.

Alton Coleman was last before us in a proceeding for post-conviction

relief. We affirmed the trial court’s denial of relief, holding among

other things that Coleman was not denied ineffective assistance of counsel.

The U.S. Supreme Court granted certiorari, and remanded to us for

reconsideration in light of Williams v. Taylor, 120 S.Ct. 1495 (2000).

On April 11, 1986, a jury found Alton Coleman guilty of murder,

attempted murder and child molesting. Coleman and a companion lured two

young girls into a wooded area, and bound and gagged them. Coleman v.

State, 558 N.E.2d 1059, 1060 (Ind. 1990) (“Coleman I”). They stomped and

strangled the seven-year-old child to death after she began crying. They

strangled and sexually brutalized the nine-year-old and left her for dead,

though she survived. Id. Following the jury’s recommendation, the court

sentenced Coleman to death. We affirmed on direct appeal. Id.

Subsequently, we affirmed the denial of Coleman’s petition for post-

conviction relief. Coleman v. State, 703 N.E.2d 1022 (Ind. 1998) (“Coleman

II”).

The U.S. Supreme Court granted certiorari, Coleman v. Indiana, 120

S.Ct. 1717 (2000), and remanded to this Court for reconsideration in light

of Williams, 120 S.Ct. 1495, in which Williams claimed, as does Coleman,

ineffective assistance of counsel (“IAC”). Williams, 120 S.Ct. at 1499.[1]

In Williams, the U.S. Supreme Court reversed the Virginia Supreme

Court and vacated Williams’ death sentence because Williams’ trial counsel

failed to adequately investigate and present mitigating circumstances

during the penalty phase of the trial. Id. at 1516. Applying the two-part

IAC test established in Strickland v. Washington, 466 U.S. 668 (1984), the

U.S. Supreme Court held that this failure amounted to constitutionally

deficient performance under the Sixth Amendment, and also prejudiced the

defense to the point of depriving Williams of a fair trial with a reliable

result. Id. at 1511, 1515.

The Williams opinion clarified the Court’s earlier decision in

Lockhart v. Fretwell, 506 U.S. 364 (1993), emphasizing that Lockhart did

not modify the two-pronged Strickland analysis that focuses on (1)

deficient performance by counsel and (2) resulting prejudice. Williams,

120 S.Ct. at 1512. In Lockhart, the defendant sought relief based on his

attorney’s failure to make an objection at his sentencing proceeding.

Lockhart, 506 U.S. at 366. The objection was sustainable under case law at

the time of the proceeding, but that law was later overruled. The U.S.

Supreme Court refused to grant the defendant a “windfall” based on

fortuitous timing, and held that he had suffered no prejudice within the

meaning of Strickland because the sentencing result was neither unreliable

nor fundamentally unfair. Id. This set of circumstances was inapplicable

in Williams, 120 S.Ct. at 1513, and it is similarly inapplicable here.

The Williams Court clarified that the focal concern in Lockhart, i.e.

whether the result of the proceeding was fundamentally fair, is not a

discrete third prong of the IAC analysis. Williams, 120 S.Ct. at 1512.

Rather, it enters into the determination of whether the likelihood of a

different outcome qualifies as prejudice in the Strickland sense. Id.

In his petition for post-conviction relief, Coleman claimed

ineffective assistance by both his trial and his appellate counsel.

Coleman II, 703 N.E.2d at 1026. We rejected these claims, citing and

applying the two-prong Strickland standard but also referring to the caveat

in Lockhart that “a different outcome but for counsel’s error will not

constitute prejudice if the ultimate result reached was fair and reliable.”

Id. at 1028 (citations omitted). We now revisit the IAC issues raised by

Coleman, applying the two-prong Strickland standard based on the most

recent guidance provided in Williams. Our holdings on all other issues

remain the same, and they stand.

The Standard of Review

As a threshold matter, we reject Coleman’s claim that he is entitled

to de novo review because he presents mixed questions of law and fact.

(Appellant’s Remand Br. at 4.) Coleman is correct that the U.S. Supreme

Court said in Strickland that “both the performance and prejudice

components of the ineffectiveness inquiry are mixed questions of law and

fact.” Strickland, 466 U.S. at 698. In Williams, however, the Court

accepted that “[t]reating the prejudice inquiry as a mixed question of law

and fact, the Virginia Supreme Court accepted the factual determination

that available evidence in mitigation had not been presented at the trial .

. . .” Williams, 120 S.Ct. at 1501.

We see nothing in Williams to alter the standard of review we apply to

appeals of judgments denying post-conviction relief. We will reverse a

negative judgment after a non-jury trial only if “the evidence as a whole

leads unerringly and unmistakably to a decision opposite that reached by

the postconviction court.” Woods v. State, 701 N.E.2d 1208, 1210 (Ind.

1998)(citing Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind. 1995)),

cert. denied, 120 S.Ct. 150 (1999).[2] We accept findings of fact unless

they are clearly erroneous, although we give conclusions of law no

deference. Woods, 701 N.E.2d at 1210. The post-conviction court is the

sole judge of the weight of evidence and credibility of witnesses. Id.

I. Ineffective Assistance of Trial Counsel

The post-conviction court held that Coleman’s claim of ineffective

assistance of trial counsel was waived because it was not raised on direct

appeal. Coleman II, 703 N.E.2d at 1027. Subsequently, however, we held in

Woods v. State, 701 N.E.2d at 1220, that Sixth Amendment claims of

ineffective assistance of trial counsel not raised on direct appeal may be

raised in post-conviction proceedings. Therefore, in Coleman II, we

addressed Coleman’s claim of ineffective assistance of trial counsel, but

rejected it as a matter of law because Coleman’s offers of proof failed to

establish any of his specific assertions. Coleman II, 703 N.E.2d at 1028.

We revisit those conclusions below, applying the two-pronged Strickland

analysis.

A. Failure to Investigate and Present Mitigating Evidence at the

Penalty and Sentencing Phase. Coleman argues that his lawyer was

ineffective in failing to present potentially mitigating evidence related

to his troubled childhood environment and to his mental illness and

personality disorder. (Appellant Remand Br. at 11-14.) On the latter

issue, Coleman argues that he was prejudiced by his counsel’s failure to

present evidence of his personality disorder and brain dysfunction. (Id.

at 13-14.) The post-conviction court, however, after hearing extensive

evidence on both sides of the issue, found that Coleman does not suffer

from either disorder. Coleman II, 703 N.E.2d at 1032, (P-C.R. at 1744-45).

Applying a pure Strickland analysis, the post-conviction court concluded

that, had this evidence been presented, it would not have made a difference

to the outcome of the trial or sentencing. Coleman II, 703 N.E.2d at 1032,

(P-C.R. at 1744). We agree that Coleman suffered no prejudice under

Strickland from his counsel’s failure to argue mental defect or personality

disorder as a mitigating factor in sentencing.[3]

Coleman’s claim rests, then, on the mitigating evidence he offered at

the post-conviction proceeding relating to his troubled childhood. As

noted in Coleman II, 703 N.E.2d at 1031, this court has consistently held

that evidence of a difficult childhood warrants little, if any, mitigating

weight. See Peterson v. State, 674 N.E.2d 528, 543 (Ind. 1996) (mitigating

weight warranted by a difficult childhood is in the low range), cert.

denied, 522 U.S. 1078 (1998); Loveless v. State, 642 N.E.2d 974, 977 (Ind.

1994) (some such evidence is occasionally declared not mitigating at all).

Nonetheless, it is certainly true that “evidence about the defendant’s

background and character is relevant because of the belief, long held by

this society, that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who have no such excuse.”

Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown,

479 U.S. 538, 545 (1987) (O’Connor, J. concurring)). Childhood abuse and

privation may, along with other mitigators, “influence[] the jury’s

appraisal of [] moral culpability.” Williams, 120 S.Ct. at 1515.

Unlike Coleman’s claim of mental illness and personality disorder, we

have no findings of fact from the post-conviction court regarding the

evidence Coleman offered about the circumstances of his youth. At the post-

conviction proceeding, Coleman offered testimony, inter alia, that his

mother was a gambler and a prostitute who “starved, beat & hustled” her

children. (P-C.R. at 3683, 3793-94.) Coleman spent most of his childhood

in conditions of squalor, living with a grandmother who practiced voodoo

and who told Coleman that his mother had discarded him in a trash can when

he was born. (P-C.R. at 3717, 3772, 3681.) The grandmother verbally

vilified and physically beat Coleman. (P-C.R. at 3760, 3684.) She

addressed him by his widely-known nickname “Pissy” because Coleman had

bedwetting problems through his early teens. (P-C.R. at 3684.) In

summary, Coleman proffered evidence that he grew up neglected and abused.

We cannot effectively evaluate the credibility of this evidence from a

cold record. We therefore assume its truth for purposes of analysis, to

determine whether a remand for factual findings is necessary.

We begin with the second prong of Strickland, the issue of

prejudice.[4] The focus of this inquiry is whether, had Coleman’s counsel

offered evidence of Coleman’s troubled childhood at the penalty phase of

the trial, there is a reasonable probability that the result would have

been different, i.e., that Coleman would have avoided a death sentence.

Strickland, 466 U.S. at 695. We look to the factual circumstances in

Williams for guidance in our assessment.

Omitted Mitigating Evidence. In Williams, counsel failed to present

evidence

that Williams’ parents had been imprisoned for the criminal neglect of

Williams and his siblings, that Williams had been severely and

repeatedly beaten by his father, that he had been committed to the

custody of the social services bureau for two years during his

parents’ incarceration (including one stint in an abusive foster

home), and then, after his parents were released from prison, had been

returned to his parents’ custody.

Williams, 120 S.Ct. at 1514. In addition, Williams was “borderline

mentally retarded” and did not advance beyond the sixth grade in school.

Id. Williams’ counsel also failed to offer prison records and credible

testimony showing that Williams thrived in a structured prison environment.

Id.

Coleman, by contrast, has offered no evidence that he would be a model

prisoner. In fact, he was charged with raping another inmate, and

convicted of the lesser offense of battery, while he was incarcerated in

1976. (T.R. at 2620.) Nor has Coleman offered evidence of retardation.

He attended school through the ninth grade, (P-C.R. at 4121), and in a

competency hearing held prior to his trial, two court-appointed

psychiatrists found Coleman to be above average in intelligence, (T.R. at

2631.) The only omitted mitigation evidence that Coleman offers is that

he, like Williams, suffered a childhood “filled with abuse and privation.”

Williams, 120 S.Ct. at 1515; Coleman II, 703 N.E.2d at 1031.

Sentencing Evidence Presented. In Williams, the defendant struck his

victim with a mattock and took a small sum of money from the victim’s

wallet after the victim refused Williams’ loan request. Williams, 120

S.Ct. at 1499. Williams was convicted and sentenced to death after he

spontaneously confessed to the murder, which had been written off as a

death from blood alcohol poisoning. Id. Williams expressed remorse, and

cooperated with the police. Id. Unlike Williams, Coleman did not confess,

did not express regret, and did not cooperate in the investigation.

In both Williams and Coleman, the State offered evidence of the

defendants’ other crimes. Williams had previously committed armed robbery,

burglary, grand larceny, arson, two auto thefts, and two violent assaults

on elderly victims. Williams, 120 S.Ct. at 1500. Coleman’s sentencing

court similarly noted Coleman’s extensive record of violent criminal

activity. This included convictions for robbery and battery, and pending

charges for rape, child molesting, two kidnappings, multiple robberies and

burglaries, three assaults, two attempted murders, and seven murders.

(T.R. at 2614, 2621.) Also, unlike in Williams, Coleman had two prior

murder convictions. (T.R. at 2419-20.)

As mitigating evidence, Williams’ counsel primarily emphasized that

Williams had confessed and cooperated. Williams, 120 S.Ct. at 1500.

However, counsel then inexplicably conceded in closing argument that “it

was difficult to find a reason why the jury should spare Williams’ life.”

Id.

Coleman’s counsel presented no mitigating evidence, but relied instead

on a general religious and moral argument against the death penalty and a

request for mercy.[5] (T.R. at 2522, 2570-71.) Coleman’s own statement at

his sentencing hearing focused on the fairness of his trial, and ended

with a request for mercy. (T.R. at 2582-87.)

Totality of the Evidence. The dispositive question here, as in

Williams, is what effect the totality of the omitted mitigation evidence

would have had on Coleman’s sentence. Williams, 120 S.Ct. at 1515. In

Williams, the U.S. Supreme Court noted that “[t]he circumstances recited in

[Williams’] several confessions are consistent with the view that in each

case his violent behavior was a compulsive reaction rather than the product

of cold-blooded premeditation.” Williams, 120 S.Ct. at 1515-16. Coleman’s

actions tell a different story. He and his companion lured two young girls

into the woods to inflict egregious harm upon the children for their own

sexual pleasure. Coleman neither confessed nor expressed regret for this

predatory attack. Besides having committed a particularly atrocious crime,

Coleman faced aggravating factors not present in Williams: two prior

capital murder convictions.

Turning to the omitted mitigators, counsel in Williams could have

pointed to three factors: childhood abuse and neglect, borderline mental

retardation, and a record of successful incarceration. Coleman offers only

one additional mitigator: a difficult childhood.

Because Williams “turned himself in, alerting police to a crime they

otherwise would never have discovered,” Williams 120 S.Ct. at 1515,

Williams presented a much closer sentencing decision based on the original

evidence presented. It is unsurprising, then, that when the Williams post-

conviction judge (who had imposed the original sentence) considered the

three omitted mitigating factors, that judge concluded that it was

reasonably probable that this information would have tipped the scales

against a death sentence. Id.

Here, with a predatory and unrepentant defendant who had two prior

capital murder convictions and no mitigating circumstances, the sentencing

decision was much more clear-cut. The jury returned its recommendation in

favor of the death penalty within two hours, (T.R. at 2539), and the trial

court discussed at length the numerous compelling aggravators and lack of

mitigating circumstances, (T.R. at 2618-37).

Taking into consideration all the evidence, both presented and

omitted, and our previous holdings that a difficult childhood carries

little mitigating weight, we conclude that it is extremely unlikely that

the sentencing result would have been different had Coleman’s trial counsel

presented credible evidence of Coleman’s childhood abuse and neglect.

Because we find no reasonable probability that Coleman would have avoided a

death sentence based on the omitted evidence, Coleman’s claim of IAC at the

penalty and sentencing phase of his trial fails under the second prong of

Strickland.

B. Mystery Hairs. Coleman’s trial counsel failed to present

evidence that two hairs in a rape kit containing evidence collected from

one victim belonged to neither Coleman nor his co-defendant. Coleman II,

703 N.E.2d at 1028. We concluded in Coleman II that, although there was no

apparent strategic reason for not presenting this evidence, it did not

constitute prejudice in the Strickland sense because of the magnitude of

other evidence pointing to Coleman’s guilt. Id. We also cited Lockhart

and found that the failure did not render Coleman’s conviction unfair or

unreliable. Id. at 1028-29. Under Strickland alone, we continue to hold

that there was no reasonable probability that presentation of this evidence

would have changed the result of the proceeding.

C. Other Claims. Coleman offers no argument on remand in support

of his other claims of ineffective assistance of trial counsel. We take

our earlier decisions on these contentions to be unaffected by the remand

order, as his present lawyers apparently do.

II. Ineffective Assistance of Appellate Counsel

Coleman claimed IAC due to his appellate counsel’s failure to raise

the issue of trial IAC and to challenge the trial court’s sentencing order.

Coleman II, 703 N.E.2d at 1032. We allowed Coleman to raise the former

issue in post-conviction review. Id. at 1027-28. We reviewed the latter

issue sua sponte on direct appeal. Id. at 1032. Therefore, Coleman

suffered no prejudice on these points.

Coleman also claimed appellate IAC for failure to challenge certain

jury instructions and to challenge denial of funds for an eyewitness

identification expert. Id. at 1032-33. The post-conviction trial court

rejected these, along with all other, claims of appellate IAC, based purely

on the two-pronged Strickland analysis. (P-C.R. at 1713-43.) We agreed in

Coleman II, without reference to or consideration of Lockhart, that Coleman

failed to prove IAC on these issues. Coleman II, 703 N.E.2d at 1032-33.

Therefore, we continue to hold that Coleman was not denied effective

assistance of appellate counsel in violation of the Sixth Amendment.

Conclusion

We affirm the judgment of the post-conviction court.

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

Rucker, J., not participating.

-----------------------

[1] The U.S. Supreme Court’s order of remand directs us to Williams v.

Taylor, 120 S. Ct. 1479 (2000). However, that case addresses issues not

presented in Coleman II. We have assumed that the order intended to direct

us to Williams v. Taylor, 120 S.Ct. 1495 (2000), decided the same day,

which does deal with issues relevant to Coleman II.

[2] See also Harrison v. State, 707 N.E.2d 767, 774 (Ind. 1999)(“We will

disturb the decision only if the evidence is without conflict and leads

only to a conclusion contrary to the result of the post-conviction court.”)

(citation omitted), cert. denied, 120 S. Ct. 1722 (2000); Miller v. State,

702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied, 120 S.Ct. 806 (2000).

[3] We note also that the trial court ordered Coleman’s transfer to a

diagnostic center for a psychological and psychiatric evaluation prior to

sentencing, to better determine “the nature of the offender . . . .” (T.R.

at 2619.) Coleman objected, however, and the evaluation did not occur.

(Id.)

[4] The U.S. Supreme Court advised in Strickland that “[i]f it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should be

followed.” Strickland, 466 U.S. at 697.

[5] At the sentencing hearing, Coleman’s counsel pointed out that Coleman

was already under two death sentences and questioned the need for an

additional death sentence given that Coleman could only die once. (T.R. at

2571.) Counsel also argued that Coleman’s life should be spared in the

interests of studying the criminal psyche. (T.R. at 2576-77.) We do not

count either argument as mitigating.