On June 18, 1984, seven-year-old Tamika Turks and her aunt, who was nine, were walking back to Tamika's house in Gary, Indiana, after a trip to a candy store, when a man and a woman fell in beside them and talked them into going into the woods. There the pair tore Tamika's shirt into strips and bound the girls with it. Tamika was found dead in the brush, and a Michael Jackson medallion she had been wearing was found near her; her aunt was assaulted, choked and left for dead, and survived to identify the two as Alton Coleman and a slender young woman with braids and beads in her hair.
The woman was Debra Denise Brown, twenty-one, who had left her family to travel with Coleman that summer through Illinois, Indiana, Ohio and Michigan while the FBI hunted them. A Lake County jury convicted her of murder, attempted murder and child molesting and recommended death, and the trial court sentenced her to death. By then she had also been tried in Ohio, where she told the court that she had killed Marlene Walters in Norwood of her own free will, beating her with vise grips, a pop bottle, a candy dish and a crowbar. That testimony, on videotape, was played at her Indiana penalty hearing.
The file holds four entries from the Supreme Court of Indiana. The first, of January 9, 1989, is not about her case at all: it is a contempt citation against her own appellate lawyer, Daniel Toomey, for missing two final deadlines for her brief. The direct appeal, decided August 29, 1991, by Chief Justice Shepard, affirmed the convictions and the death sentence over one dissent, rejecting her arguments about the child's identification, the Ohio evidence, her confession to FBI agents at the federal building in Chicago and the videotape. A short order in December 1991 denied rehearing. The last, of July 17, 1998, affirmed the denial of post-conviction relief, and turns on FBI documents she said showed how completely Coleman dominated her and on the psychologists who testified that she would not have committed these crimes without him.
Coleman was executed by Ohio on April 26, 2002. Brown's Ohio death sentence was commuted to life by Governor Richard Celeste in January 1991, days before he left office. Her Indiana death sentence was later replaced with prison terms reported as totaling 140 years, though accounts differ on when. She has been held in Ohio.
The court printed the surviving child's initials, A.H., and we have kept them. Tamika Turks is named because the court named her and because she is the victim of the murder the case is about. Donna Williams, whom the FBI agent's warrant lists as a kidnapping, is named as the opinion names her. Nothing else needed to be withheld; the other people in the file are police, agents, doctors and lawyers.
These are findings on a record. Where the 1991 opinion describes the crime, it is the court's account of the evidence the jury accepted, and the question of how far Coleman controlled Brown, which was the heart of her defense and of her mitigation, was a matter of expert opinion the courts weighed and did not resolve for her. Her Ohio testimony that she killed Walters willingly is her own statement, made under oath, and it cut against everything her lawyers argued.
The court spells her first name both Debra and Deborah, sometimes in the same opinion, and we have left both as printed. The 1989 contempt order is five hundred words about a lawyer's missed filing dates; it is here because it sits in her docket and because a capital appeal was held up by it, and anyone who finds it cited under her name should not take it for a ruling on the case.
In the Matter of Daniel L. TOOMEY, Respondent. Debra Denise BROWN, Appellant, v. STATE of Indiana, Appellee.
No. 45S00-8703-CR-271.
Supreme Court of Indiana.
Jan. 9, 1989.
Daniel Lawrence Toomey, Merrillville, pro se.
Linley Eugene Pearson, Indianapolis, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
This matter is before the Supreme Court on a citation for (indirect criminal) contempt of this Court due to the failure of the Respondent, Attorney Daniel L. Too-mey, to file the brief of appellant by the time designated in the order granting a final extension of time and by the time designated in an order granting a second final extension of time.
On September 21, 1988, this Court granted a final extension of time to Respondent to file the brief of appellant. Said brief was to have been filed on or before November 21, 1988. Nevertheless, on November 21, 1988, Attorney Toomey called this Court's Administrator by telephone requesting one or two more days to complete the brief. Respondent was informed how this Court would rule, a ruling which was reduced to the following order:
This Court being duly advised in the premises now GRANTS an extension of time to file the brief to and including November 28, 1988. If the brief of appellant is not filed on or before November 28, 1988, Attorney Daniel L. Toomey shall appear before this Court on Tuesday, November 29, 1988, at 10:80 a.m., 'and show cause why he should not be found in contempt.
On November 29, 1988, Mr. Toomey again called the Court Administrator and stated he could not complete the brief by the end of the day. The next morning Respondent appeared and was allowed to state his reasons why the brief was still not filed. Respondent indicated that of the work he had completed, the greatest majority of the work had only been started after November 2, 1988. The matter of Mr. Too-mey's contempt was taken under advisement. Mr. Toomey was thereafter informed by telephone that a decision on the contempt question would be made by the Court on December 14, 1988. On the afternoon of December 18, 1988, the brief of appellant was filed.
Willful failure to obey an order of the Supreme Court is punishable as an indirect criminal contempt. In re Lemond (1980), 274 Ind. 505, 413 N.E.2d 228. This Court finds that under the facts of this case a failure to comply with two final extensions of time manifests a willful disobedience of said orders. Accordingly, Respondent Daniel Toomey is hereby found in contempt of this Court.
The Court has reviewed the range of possible sanctions for Respondent's contempt, including fine, confinement, loss of pay, and removal from the case. Because counsel finally tendered appellant's brief just prior to the date this Court was to decide the contempt question, and because this is the first time the members of this Court can recall that an attorney has failed to comply with a final extension, only a fine of $500.00 is imposed. Respondent shall pay the fine to the Clerk of the Supreme Court within ninety (90) days of this opinion.
All Justices concur, except DeBRULER, J., who would not find contempt.
Deborah Denise BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 45S00-8703-CR-271.
Supreme Court of Indiana.
Aug. 29, 1991.
Daniel Toomey, Merrillville, for appellant.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
[OPINION BY SHEPARD, Chief Justice. type=majority]
SHEPARD, Chief Justice.
Following a jury trial, Deborah Denise Brown was convicted of murder, a felony, Ind.Code § 35-42-1-1; attempted murder, a class A felony, Ind.Code §§ 35-41-5-1(a), 35-42-1-1; and child molesting, a class A felony, Ind.Code § 85-42-4-8(a). After the penalty phase of the trial, the jury recommended the death penalty. The trial court sentenced Brown to death. Brown raises five issues in this direct appeal:
I. Did the trial court err in admitting the in-court identification of Brown by a witness who had previously participated in an unduly suggestive identification procedure?
II. Did the court err in admitting evidence of an extrinsic offense to prove the identity of the defendant?
III. Did the trial court err in admitting evidence of Brown's oral confession?
IV. Did the court err by admitting in the penalty phase of the trial a videotape of Brown's previous testimony?
V. Did the trial court err in rejecting the defendant's first instruction in the penalty phase of the trial?
Facts
The evidence supporting the jury's verdict reveals that on June 18, 1984, A.H., then age nine, and her niece, Tamika Turks, then age seven, were walking back to Tamika's house after a trip to a candy store and a hot dog stand in Gary. A man and a woman, Alton Coleman and Deborah Brown, approached the girls,. Coleman asked the children if they wanted some clothes. They seemed agreeable, and Coleman asked them to follow Brown. Coleman said he would catch up with them later. Although Tamika commented to AH. along the way that they should not have gone with these people, the children accompanied Brown on a walk to a secluded, wooded area. The walk was ap-: proximately 1.4 miles long, and was estimated to have taken 40 minutes for small children.
Coleman caught up with Brown and the children. At the woods he announced he was going to play a game. The adults removed Tamika's shirt and Brown then eut the shirt into strips which were used to tie up the hands, legs, and mouths of the children. At this point, Tamika began to cry and the attackers pushed her down. While Brown held Tamika's nose and mouth, Coleman stomped on Tamika's stomach and chest. The two assailants carried Tamika a short distance away, hidden in weeds out of A.H.'s view.
A.H. was then forced to perform oral sex on both Coleman and Brown. Coleman revealed a partially concealed gun and threatened to kill Annie if she did not comply. He then raped AH. Afterwards, AH. heard a loud moan coming from where the two had taken Tamika. Brown stated that the girl was not dead yet, and went over to the area where Tamika was.
When Brown returned, she and Coleman began choking A.H. with their belts. AH. lost consciousness. When she awoke, the assailants were gone. A.H. stumbled back out of the wooded area. She was discovered by a woman who called A.H.'s mother and an ambulance. Tamika lay dead in the woods.
In the trial court, Brown was convicted of the murder of Tamika Turks, of the attempted murder of A.H., and of molesting A.H.
I Could A.H. Properly Identify Brown?
Brown first asserts the trial court erred in permitting A.H. to identify her in court. Brown contends that the identification was tainted because A.H. had previously been shown a single photograph of the defendant before she testified at the trial of Alton Coleman in Ohio. An Ohio prosecutor had shown her Brown's picture and asked, "Can you identify this person?" The trial court held a hearing on Brown's motion to suppress A.H.'s identification; it denied the motion. Brown contends that this constitutes reversible error.
This Court has long held that extrajudicial exhibition of a single photograph to a victim is an unduly suggestive identification procedure. Parker v. State (1976), 265 Ind. 595, 358 N.E.2d 110; Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867. As a result, "[dlirect eyewitness identification at trial is inadmissible if pre-trial photographic identification procedures which preceded it were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Haun v. State (1983), Ind., 451 N.E.2d 1072, 1075; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). This Court has repeatedly held, however, that "an in-court identification by a witness who has participated in an imper-missibly suggestive out-of-court identification is admissible if the witness has an independent basis for the in-court identification." French v. State (1987), Ind., 516 N.E.2d 40, 42; Henson v. State (1984), Ind., 467 N.E.2d 750.
To determine whether AH.'s in-court identification was permissible in Brown's trial requires determining whether there was clear and convincing evidence that the witness had an adequate independent basis for her in-court identification. See Heiman v. State (1987), Ind., 511 N.E.2d 458, 460. This review searches "the totality of the circumstances pertaining to the witness' opportunity to observe the perpetrator during the commission of the crime...." Dorsey v. State (1986), Ind., 490 N.E.2d 260, 267; see also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 LEd.2d 401 (1972). Among the pertinent factors are "the length of time the witness was in the presence of the perpetrator, the distance the witness was from him, the lighting conditions at the time, the witness' capacity for observation, and the opportunity to observe particular characteristics of the perpetrator." Dorsey, 490 N.E.2d at 267; see also Biggers, 409 U.S. 188 at 199, 93 S.Ct. 375 at 382.
The evidence suggests that A.H. was in the company of Brown for at least forty minutes, the time it was estimated to take for a child to walk with Brown to the park where the attack occurred. This walk and the subsequent attack took place in broad daylight, providing ample opportunity for a good look. A.H.'s eye doctor testified that the child could recognize anybody up to six or seven feet away. Record at 2819 (testimony of Dr. Raymond Carmody at suppression hearing). Based on the nature of the attack, A.H. was so close to Brown that her nearsightedness and lack of glasses would not have prevented her from perceiving and describing appellant. AH.'s identification of Brown at trial was unequivocal, and she emphasized that her identification was based on her experience in the woods on the day of the incident. Furthermore, A.H. had already tentatively identified the defendant in a line up in which her nearsightedness may have come into play. Id. at 2278-77 (testimony of Mary Hillard); id. at 2296-97 (testimony of Lieutenant Kenneth Barnes). She had also earlier ruled out as suspects people shown to her who were not her assailants, 1d. at 2306-07 (testimony of Barnes).
Given these facts, covering the breadth of conditions mentioned in Dorsey, 490 N.E.2d at 267, there is clear and convincing evidence that A.H.'s in-court identification was based upon observations gained independently of any unduly suggestive pretrial procedure. A.H.'s in-court identification of Brown was properly admitted at trial.
IIL Evidence of an Extrinsic Offense
Appellant next contests the admission of evidence of an extrinsic offense, the Ohio murder of Tonnie Storey, during the guilt phase of her trial. Evidence of crimes extrinsic to the one for which a defendant is on trial is generally inadmissible in Indiana. Malone v. State (1982), Ind., 441 N.E.2d 1339. Long-recognized exceptions to this rule, however, provide that "[elvidence of other criminal activity may be admissible in certain cases to prove an accused's identity, knowledge, intent or motive, or to demonstrate the common plan or scheme of criminal activity from which the accused originated the charged crime." Id. at 1846. Because such evidence can often be unduly prejudicial, however, exceptions to the rule are to be applied cautiously. Gibbs v. State (1989), Ind., 538 N.E.2d 937; Penley v. State (1987), 506 N.E.2d 806.
The parties to this litigation argue the admissibility of the Storey evidence on two recognized exceptions to the extrinsic offense exclusionary rule. One exception allows in evidence of extrinsic crimes shown to be part of a larger preconceived plan that includes the charged offense. Gibbs, 538 N.E.2d at 939; Penley, 506 N.E.2d at 809. The second category allows admission of extrinsic evidence to prove identity by showing the defendant committed other crimes with a similar modus oper-andi. Penley, 506 N.E.2d at 808-09.
Brown argues that evidence of the extrinsic offense admitted at trial falls within neither category of exceptions. Because we find that the uncharged crime satisfies the identity/modus operandi exception to the general rule, we need not address Brown's claim that the State did not prove the charged and uncharged crimes were part of a larger preconceived plan.
The use of modus operandi evidence to prove identity requires the State to show "that the similarities between the two crimes are so strong and the method so clearly unique that it is highly probable that the perpetrator of both is the same person." Penley, 506 N.E.2d at 809. The mere repetition of similar crimes will not suffice to qualify as an exception to the general rule. Gibbs, 588 N.E.2d at 939; Malone, 441 N.E.2d at 1346. Instead, "this Court requires a strong showing that the different criminal actions were so similarly conducted that the method of conduct can be considered akin to the accused's 'signature'" Malone, 441 N.E2d at 1346; Gibbs, 538 N.E.2d at 939.
The facts of the Ohio murder and the Gary incident were sufficiently similar to constitute signature crimes. Tonnie Sto-rey, like AH. and Tamika Turks, was a young black female. Storey was last seen alive in Ohio walking down the street with a man identified as Alton Coleman and a slender woman, lighter in complexion than Coleman, with her hair in braids with beads. Record at 2684-89 (testimony of Yvette Lewis). A.H. had also described the pair she and Tamika walked with in Gary as Alton Coleman and a skinny black female, lighter in complexion than Coleman, with her hair in French braids. Tamika and AH. were walked a distance away from where they met Brown and Coleman to an isolated area for the attack. The body of Storey was found in a gutted building in a deserted area six blocks from where Storey was last seen. Record at 2698-99 (testimony of Officer Dianne Arnold).
Onee at the wooded area in Gary, the attackers removed Tamika's pink shirt and Brown cut it into strips of cloth with a knife. Strips were used to bind the hands, legs, and mouths of the children. Record at 2470-71 (testimony of A.H.). Pink cloth pieces were recovered by police in the woods near the body of Tamika. A ripped blue blouse was also found near the shirtless body of Tonnie Storey. Ripped strips of blue fabric, some of them knotted, were found at the scene. These strips of fabric appeared to be the same material as the ripped top. Record at 2731-83.
Tamika died of asphyxia by strangulation. She was strangled with an elastic strip of a bedsheet. Storey also died from asphyxia by strangulation. A white sheet and strips of that sheet, some of them possibly knotted, were found at the vacant building. Record at 2734. Also found at the building was a Michael Jackson button with Brown's fingerprint on it; Tamika's Michael Jackson medallion was found near her corpse in Gary. Taken all together, the evidence supports a finding that the Indiana and Ohio crimes are distinctive enough to constitute signature crimes rather than the mere repetition of similar crimes.
Brown argues that there was insufficient evidence presented to show that it was she who committed the murder of Tonnie Storey. For evidence of an extrinsic offense to be admissible under the mo-dus operandi exception, the defendant must have committed the extrinsic offense. Gibbs, 538 N.E.2d at 939-40. Cireumstan-tial evidence can suffice to show the defendant committed the extrinsic offense. Gibbs, 538 N.E.2d at 940; Foust v. State (1981), Ind., 428 N.E.2d 776. The evidence outlined above was sufficient to tie Brown to the extrinsic murder.
Brown further contends that evidence of the extrinsic offense was not needed to prove identity at her trial. Normally, evidence which is merely cumulative is not grounds for reversal. Sharp v. State (1989), Ind., 534 N.E.2d 708, cert. denied - U.S. ---, 110 S.Ct. 1481, 108 L.Ed.2d 617 (1990). In the case of extrinsic offenses, however, we have held that "if identification of an accused can be proved by other evidence or if an accused's identity is not a material issue, then the admission of evidence of other criminal activity is improper to establish identity." Malone, 441 N.E.2d at 1346.
Identity was a material issue in this case. Brown argues that the extrinsic offense should not have been admissible because the State had A.H.'s eyewitness testimony, the defendant's oral confession, and some circumstantial evidence to prove identity. The principal direct evidence identifying Brown as the assailant in Gary was Brown's oral confession and A.H.'s testimony. The admissibility of both of these pieces of evidence was strongly contested by the defendant at both the trial and appellate level. Because identity was still at issue, it was proper to admit evidence of the extrinsic offense to establish identity.
Brown last charges that the probative value of the extrinsic offense evidence was outweighed by its prejudicial nature. In support of this argument, however, appellant merely restates the proposition that as a general rule evidence of extrinsic offenses is prejudicial and thus not admissible unless within one of the narrow categories of exceptions discussed above. See, e.g., Porter v. State (1979), 272 Ind. 267, 270-71, 897 N.E.2d 269, 272; Brief of Appellant at 82-84. We have already found that the facts presented fall within an admissible exception to the general rule.
III Admissibility of Brown's Confession
On July 20, 1984, Brown was arrested and taken to the Evanston Police Department in Evanston, Illinois. At 1 p.m., Brown was advised of her rights by F.B.I. Special Agent James Gretz. At 1:04 p.m., Brown acknowledged that she understood her rights but that she did not want to sign the waiver of rights form, and she asked to speak to an attorney.
Agent Gretz continued to question Brown, collecting background information such as her name, address, date of birth, and the like. Record at 1769-75. Evans-ton Detective Sergeant Charles Schockweiler also questioned Brown at that time. He asked her whether or not she or Alton Coleman had been involved with anyone in the Evanston area who might be injured, where she had stayed in Evanston, and whether she had gone to a particular store. Brown responded to this questioning. Id. at 1775-78. The entire interview lasted until 1:38 pm. Id. at 1779.
At 1:51 p.m., appellant was told that she was being placed in federal custody and would be taken to the Federal Building in Chicago. At 2:24 p.m., Brown was placed in a car to be transported to Chicago. In the car were F.B.I. Special Agents Gretz, Denise Buten and Burdena Pasanelli Agent Pasanelli testified that she was not aware at this time that appellant had made a prior request to speak to an attorney. At the suppression hearing, Agent Pasanelli described conversations that occurred on route to Chicago.
Shortly into the ride, Brown initiated the first conversation in the car, asking Agent Pasanelli "what she was charged with." Record at 1700. Pasanelli explained to Brown that she was charged on a federal material witness warrant and that she was wanted for the kidnapping of Donna Williams and on an unlawful flight warrant. The agent also informed Brown of some charges in Detroit. Pasanelli did not further explain the meaning of the charges, the possible penalties, or the like. Id. at 1700-02.
After this first exchange, Brown again initiated conversation with law enforcement officials in the car. She asked Agent Pasanelli "what was going to happen to her.'" Record at 1702. Pasanelli explained to Brown that she was in federal custody, that she was being taken to the Federal Building in Chicago, that she would be processed as a federal prisoner, and that eventually she would appear before a magistrate who would determine if she were the person named in the warrant and would set bond. Record at 1702-08.
After this exchange, Brown again questioned the agents. She wanted to know "where she was going." Record at 1708. Pasanelli told her that she would be going to the Metropolitan Correction Center in Chicago if she did not get out on bond. Record at 1708. Later, Brown again initiated dialogue with the agents. She asked "if anyone had talked to anybody in her family." Record at 1708. Agent Buten had spoken with Brown's mother and told Brown that her mother and family were concerned about her. Record at 1708-04.
Later in the ride, either Agent Buten or Agent Pasanelli asked Brown if she was feeling okay. Record at 1704. Agent Pa-sanelli then showed Brown photographs of herself and Alton Coleman and asked Brown what had happened to her pretty smile. These photographs had been circulated by the F.B.I. as part of a fugitive investigation to locate Coleman and Brown. Brown responded that she was the person in the photographs. Record at 1704-08.
The car arrived at the Federal Building in Chicago at approximately 2:50 p.m. Record at 1710. At the Federal Building, Brown was taken to an F.B.I. interview room. Record at 1712. Following F.B.I. procedure, Brown was then told what she was charged with, and given an opportunity to make a statement to the agents. Reading the outstanding warrants to Brown took approximately forty-five minutes, which included time taken by Pasanel-li to explain the charges and the people involved in each case. Record at 1715-16.
Brown was then asked if she wanted to tell the agents about her travels with Coleman. She said she would as long as she could stop at any time. At this point Brown was again advised of her rights. She was asked if she understood her rights, and she said she did. She was read the waiver form by Agent Gretz and asked again if she was willing to answer questions. She acknowledged that she would answer questions. As she had at the Ev-anston Police Department, however, Brown refused to sign the waiver form. Record at 1716-17.
Brown was given cigarettes, soda pop, and a chance to use the restroom. The F.B.I. agents did not make promises or inducements to procure the statement from Brown. At the beginning of the interview she was simply told that Coleman was in another interview room being given the opportunity to give a statement. Record at 1748.
Brown proceeded to give an oral confession to the agents. The entire interview began at around 3 p.m. and concluded at 5:38 p.m. when Brown asked to speak with her attorney. At that point, Brown gave the agents the name and phone number of her attorney for the first time. Record at 1816 (testimony of Agent Gretz).
Brown now appeals the trial court's admission into evidence of the confession made at the Federal Building. Determining the admissibility of the confession made in Chicago requires an examination of each of the exchanges between Brown and law enforcement officials made after her first request for an attorney at 1:04 pm. on July 20, 1984. This requires a consideration of Brown's statements to Gretz and Schockweiler, in addition to her 3 p.m. oral confession.
The fifth and fourteenth amendments to the United States Constitution guarantee a suspect the right to the presence and advice of counsel during custodial interrogation by the police. Miranda v. Arizona, 884 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "When the right to have counsel is asserted, the suspect is not subject to further interrogation until counsel has been made available to him unless the suspect himself initiates further communication with the police and knowingly and intelligently waives the right previously invoked." Sleek v. State (1986), Ind., 499 N.E.2d 751, 754 (citing Oregon v. Bradshaw, 462 U.S. 1089, 108 S.Ct. 2830, 77 L.Ed.2d 405 (1983), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 LEd.2d 378 (1981)); see also Grimm v. State (1990), Ind., 556 N.E.2d 1327.
Agent Gretz and Detective Schock-weiler continued to question Brown in Ev-anston after Brown had requested an attorney and without any initiation by the defendant. Gretz's discussion with Brown, however, did not implicate Brown's Miranda rights. Obtaining routine booking information from a defendant does not amount to illegal custodial interrogation by a police officer. Nee, eg., Boarman v. State (1987), Ind., 509 N.E.2d 177, 180-81.
Detective Schockweiler apparently continued to ask substantive questions of the defendant after she had requested an attorney. Such an exchange, without initiation by the defendant, would appear to violate Brown's Miranda rights. Because the results of this exchange were not entered into evidence, however, there is no need to suppress any improper exchange.
Any later statement by Brown is not necessarily tainted by prior inadmissible statements to Schockweiler. Abner v. State (1985), Ind., 479 N.E.2d 1254, 1260 ("a prior involuntary confession does not render subsequent statements inadmissible per se"), Johnson v. State (1978), 269 Ind. 370, 378-79, 380 N.E.2d 1236, 1241. Instead, "the voluntariness of any custodial statement must be determined from an examination of the totality of the facts surrounding its making." Johnson, 269 Ind. at 378, 380 N.E.2d at 1241. To determine the admissibility of Brown's oral confession made two hours after her initial request for an attorney therefore requires examining the totality of facts to determine whether (1) Brown initiated further communication with the police, and, (2) if so, whether she knowingly and intelligently waived the rights she previously invoked. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830; Sleek, 499 N.E.2d 751.
In Oregon v. Bradshaw, the Supreme Court found that a defendant's statement to police, "Well, what is going to happen to me now?", was sufficient to find that a defendant initiated dialogue with the police. Bradshaw, 462 U.S. at 1045-46, 108 S.Ct. at 2834-35 (plurality opinion); Id. at 1050, 103 S.Ct. at 2837 (Powell, J., concurring) (agreeing that, looking to totality of circumstances, valid waiver occurred). The Court concluded that "(allthough ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship." Id. at 1045-46, 103 S.Ct. at 2834-35 (plurality opinion). In the instant case, Brown initiated fresh dialogue in the car with exactly the same question found to be initiation in Bradshaw. Furthermore, Brown initiated several more discussions along the same lines during the ride to Chicago. These discussions were separated in time, space, and subject matter from the questioning that occurred in the Evanston Police Department after Brown's initial request for an attorney. The facts of this case support a finding that Brown initiated further communication with law enforcement officials.
Brown's initiation of discussion with officers meets the first part of the test of admissibility of her oral statement. The initiation of dialogue, however, does not alone suffice to show a waiver of the previously invoked right. Doerner v. State (1986), Ind., 500 N.E.2d 1178, 1180. A separate inquiry is required to determine whether the defendant knowingly and intelligently waived the previously asserted right. Id.; Sleek, 499 N.E.2d 751; Bradshaw, 462 U.S. at 1039, 103 S.Ct. at 2832 (plurality opinion).
An analysis of the totality of the cireum-stances supports the trial court's finding that Brown knowingly and intelligently waived her previously asserted right. Brown asked for an attorney at 1:04 p.m., and some questioning continued until 1:38 p.m. Brown's initiation of dialogue in the car did not occur until at least 2:24 p.m., however, away from both the Evanston Police Department and the officers who questioned her and from whom she requested an attorney. Brown initiated general conversations with the new officers on several distinct occasions during the car ride. On arrival at Chicago, Brown was again advised of her rights. She acknowledged that she understood these rights. Furthermore, she not only refused to sign the waiver form, but she also insisted that she would only talk if she could stop at any time. At 5:83 p.m. she exercised this right. She requested her attorney, whereupon all interrogation stopped. Unlike the occasion of her first request for counsel, at 5:88 p.m. she gave officers the name and phone number of her attorney. No inducements or threats were made by law enforcement officials to gain the confession. Additionally, Brown did not give her oral confession until after 3 p.m., an event separated in space, time, and subject matter from her original request for an attorney in Evans-ton.
IV. Admissibility of the Videotape
During the penalty phase of Brown's trial, the State offered into evidence a videotape of Brown testifying at an earlier trial in Ohio. Brown contends the trial court erred in admitting the videotape. Lamar v. State (1972), 258 Ind. 504, 282 N.E.2d 795, establishes a set of foundational requirements that must be met for a tape recording to be admitted into evidence. These requirements apply to videotapes as well. Smith v. State (1979), 272 Ind. 328, 397 N.E.2d 959. Brown asserts that the tape at issue was unintelligible and unenlightening to the jury and thus failed to satisfy the fifth foundational requirement of Lamar.
Brown argues in part that the tape was confusing because some people who questioned her on the tape are not identified; some questions and comments overheard cannot be related to anyone depicted on the tape; some of her testimony was blurred; and the proceedings depicted were chaotic. For a tape to be admissible under Lamar, however, we do not require that every word be intelligible. We require only that, taken as a whole, the tape must be of such clarity that it does not lead the jury to speculate about its contents. Patton v. State (1986), Ind., 501 N.E.2d 486. The trial court has wide discretion in determining whether or not these requirements have been met. Hobson v. State (1984), Ind., 471 N.E.2d 281. We reverse only on finding an abuse of that discretion. Wallace v. State (1986), Ind., 498 N.E.2d 961.
Having reviewed the videotape, see Lamar, 258 Ind. at 510-12, 282 N.E.2d 795, we find no error in the court's ruling on this point. The trial court rejection of Brown's objections was buttressed by the fact that an official court transeript of the Ohio proceeding depicted in the tape was also in evidence. When an official court transcript of a videotape's contents is admitted, the clarity of the tape itself is obviously less important.
Brown also complains that the tape of her testimony was prejudicial because it contains several gaps. To be admissible, a tape must be complete enough to avoid speculation in the minds of jurors as to its contents. Patton, 501 N.E.2d at 438. Here, the videotape was created by members of the media present in the Ohio courtroom. The tape contains several unexplained gaps in Brown's testimony. After a showing of the tape, the contents of the unexplained gaps in the video were read to the jury from the complete court transcript of the Ohio proceedings. Using the official transcript to fill in gaps in the tape was sufficient to avoid any impermissible speculation by the jurors about the missing contents.
Brown next argues that the tape was inadmissible because it contains material not otherwise admissible. In general, she argues the tape contains evidence of uncharged crimes which are inadmissible evidence of bad character. The tape and transcript depict Brown testifying at an Ohio trial of Alton Coleman. Brown testified that she willingly and independently murdered Marlene Walters by beating her with a vice grip, pop bottle, candy dish, and crowbar. There is also reference to the murder of Tonnie Storey.
The State offered this evidence, previously discussed with the defendant's expert witnesses, as rebuttal to Brown's mitigation evidence. The defense sought to demonstrate Brown's general lack of aggressiveness, substantial domination by Coleman, and borderline retardation. Ind.Code § 85-50-2-9(c). Defense experts testified that Brown had a passive dependant personality. See, eg., record at 8582-838 (testimony of psychiatrist Jonathan Kelly, M.D.); id. at 8691 (testimony of clinical psychologist Dr. Vernon Suran). Both doctors suggested that Brown was acting under the influence of Alton Coleman. See, eg., id. at 8582-88 (testimony of Kelly); id. at 8718 (testimony of Suran). Doctor Suran testified that examination of Brown's tests did not show evidence of hostile or aggressive tendencies. Id. at 3689-90. Doctor Kelly did not find evidence of an antisocial personality disorder either. Id. at 3586. Both doctors testified that Brown had a borderline retarded intelligence. Id. at 8524-25 {testimony of Kelly); id. at 8692 (testimony of Suran). On cross-examination, Dr. Kelly testified that a videotape of Brown testifying at trial could be indicative of Brown's intelligence level. Id. at 8558-59.
After discussing the videotape with both doctors, the State offered the tape and accompanying transcript solely to rebut the defendant's proffered mitigating evidence. See id. at 8860 (trial court admonishes jury that tape is admissible only to rebut evidence of mitigating factors and not as direct evidence of aggravating circumstances). Brown appears to argue that this evidence of uncharged crimes is inadmissible as evidence of bad character and thus should not have been allowed into evidence. Since we find that the tape was properly within the scope of rebuttal for the State, we need not address Brown's additional claim that the tape was not admissible to rebut the charge that Brown had no significant history of prior criminal conduct. Brief of Appellant at 97-98.
Evidence of a defendant's commission of unrelated crimes is generally inadmissible to prove guilt. Storey v. State (1990), Ind., 552 N.E.2d 477; Bond v. State (1980), 273 Ind. 233, 408 N.E.2d 812. At the penalty phase of trial, however, the guilt of the defendant has already been established. In fact, the death penalty statute permits evidence of extrinsic crimes to be proven as aggravators at this stage. Ind.Code § 35-50-2-9(b). Here, the State had already introduced evidence of the murders of Walters and Storey as aggravating cireumstances earlier in the penalty phase. Ind.Code § 35-50-2-9(b)(7). The jury had also previously heard details of the Storey murder during the guilt phase of Brown's trial.
As indicated by the admonitions of the trial court, though, the evidence on the tape was admitted only to rebut mitigating evidence offered by Brown. When the accused offers evidence of her own character, she opens the door to the subject of her character for the trait placed in issue. Berkley v. State (1986), Ind., 501 N.E.2d 399, 400; Bond, 273 Ind. at 240-41, 403 N.E.2d at 818. The State can then introduce evidence of specific misconduct in its rebuttal. Bond, 273 Ind. at 240-41, 403 N.E.2d at 818. The seope of rebuttal evidence is in the discretion of the trial court. The trial court's decision will be reversed only on a finding of abuse of discretion. Berkley, 501 N.E.2d at 400.
Evidence of past crimes may be used to refute expert testimony regarding an accused's mental condition and behavioral deficiencies. Storey v. State, 552 N.E.2d at 480-82; Bond, 273 Ind. at 240-41, 403 N.E.2d at 818. The trial court did not abuse its discretion in admitting evidence referring to extrinsic crimes to rebut the testimony of Brown's experts.
Brown last argues that even if the videotape does have probative value, its potential to prejudice the defendant exceeds this value and thus it was error to admit the tape, citing Hyde v. State (1983), Ind., 451 N.E.2d 648, and Martin v. State (1983), Ind., 453 N.E.2d 1001. Admitting evidence of uncharged crimes at a trial is recognized as generally prejudicial. Gibbs, 538 N.E.2d at 938-39. Here, however, the probative value of a witness testifying under oath in a courtroom about her own attitude towards offenses committed is also extremely high. We cannot say that the trial court erred in striking the balance that it did in admitting the tape.
V. Rejection of Defendant's Instruction 1
Brown last argues that the court erred in refusing Defendant's Instruction 1 in the penalty phase of trial. This instruction stated:
The State of Indiana has alleged the aggravating circumstances following:
1. On or about June 18, 1984, in the County of Lake, and State of Indiana, Alton Coleman and Debra (gic) Denise Brown did intentionally kill Tamika Turks, while committing or attempting to commit child molesting on A.H., a female child.
2. On June 24, 1985 and on June 27, 1985, respectively, Alton Coleman and Deborah Denise Brown, were convicted of two (2) counts of Murder in the Court of Common Pleas, Hamilton County, Ohio under cause number B-843548.
3. On May 6, 1985 and on May 14, 1985, respectively, Alton Coleman and Deborah Denise Brown, were convicted of two (2) counts of Murder in the Court of Common Pleas, Hamilton County, Ohio under cause number B-842559.
Before you consider any of these circumstances as an aggravating circumstance, you must find that the cireum-stance has been established, beyond a reasonable doubt, by the evidence. You are not allowed to take into account any other circumstances, except those of the above which have been proved beyond a reasonable doubt, as a basis for deciding that the death penalty would be an appropriate punishment in this case.
Record at 4065.
The instructions given by the trial court listed the charged aggravators one to three. Record at 4079 (final instruction 1). The court's final instructions also told the jury that the State must prove beyond a reasonable doubt the existence of at least one of the aggravating circumstances alleged. Record at 4085 (final instruction 7). Instruction 7 given also stated that:
The jury may recommend the death penalty only if it finds:
1. that the State has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances exists; and
2. that any mitigating circumstances that exist are outweighed by the aggravating circumstance or cireumstances.
Record at 4086.
The only conceivable argument here by appellant, then, is that the court erred by not expressly limiting the possible aggravating circumstances considered by the jury to those enumerated by the State in the charging instrument. In reviewing whether the trial court erred in refusing to give an instruction, we consider whether the tendered instruction correctly states the law, whether the record supports the giving of the instruction, and whether the substance of the tendered instruction is covered by the instructions given. Richey v. State (1981), Ind., 426 N.E.2d 389.
Defendant's Instruction 1 misstated the nature of the aggravators charged by the State. The instruction would have informed the jury that the aggravators to be proven were that Brown and Coleman intentionally killed Tamika and killed two others. In fact, the aggravators in Brown's trial related only to Brown. Additionally, the proposed instruction misstated the law with respect to aggravating circumstances. Minnick v. State (1989), Ind., 544 N.E.2d 471, 482. The trial court thus properly refused defendant's Instruction 1.
VI The Sentence
This defendant was found guilty by a jury of the murder of a seven year old girl, Tamika Turks, and of child molesting and the attempted murder of a nine year old girl, A.H. The State offered three aggravating circumstances under the death penalty statute: that Brown had been convict ed of two different murders in Ohio, and that Brown committed the murder of Tamika Turks while committing or attempting to commit child molesting on A.H. The trial court found each of these cireum-stances were proven beyond a reasonable doubt. They certainly were so proven. Evidence of the murders of Tonnie Storey and Marlene Walters in Ohio was admitted not only by the Ohio convictions entered at the penalty phase, but also through substantive evidence in both the guilt (Storey) and penalty (Walters) phase of Brown's Indiana trial.
The trial court relied on the three statutory aggravators in finding that the aggravators outweighed the mitigating circumstances leading to imposition of the death penalty. The trial judge, Richard W. Maroc, capably and carefully considered each of the possible mitigating factors in detailed findings. The judge noted aspects of several mitigating circumstances. Regarding the first factor, that "the defendant has no significant history of prior criminal conduct," the court found that pri- or to the commission of the crimes at issue, the defendant had no significant history of criminal conduct. Supplemental record at 85. The court noted, though, that prior to murdering Tamika Turk, Brown accompanied Alton Coleman knowing that he was charged with the rape of a fourteen-year-old child and was wanted regarding the disappearance of another young girl. The court also noted that after the crimes in Gary, Brown continued to accompany Coleman and participated in other serious crimes previously enumerated and described in the findings. As Judge Maroc noted, between June 1, 1984 and July 20, 1984, Brown was charged with "by this [trial] Court's best estimate, a Class A Child Molesting, that's in this case, two Kidnappings, a total of eight counts of Robbery stemming from five separate incidents, two separate charges of Attempted Murder, four counts of Burglary, one of Attempted Burglary, and no less than six murders." Supplemental record at 68. Appellant argues that when weighing the first factor, the trial court erred in considering Brown's alliance, prior to the murder of Tamika Turk, with a person she knew was engaged in criminal behavior. In assessing the weight of Brown's lack of criminal record, the assistance she rendered to Coleman was a legitimate consideration. Moreover, given the string of murders for which Brown has been convicted, it is reasonable to give little weight to mitigating evidence showing that she had no significant history of prior criminal conduct.
The trial court next considered the second potential mitigating factor of whether the defendant was under the influence of extreme mental or emotional disturbance at the time of the murder. The court found that, although there was some evidence that the defendant was acting under "mental or emotional disturbance when the crimes herein were committed," id. at 86, in the court's opinion "the defendant [did] not qualify as being under a mental or emotional disturbance of such an extreme nature as to excuse her conduct in the commission of these offenses." Id. at 87.
Appellant argues that the trial court erred in requiring her disturbance to be so extreme as to excuse her participation in the crime. The trial court had previously found, however, that psychiatric testimony indicated Brown did have substantial capacity to appreciate the criminality of her conduct and to conform her conduct to the requirements of law. Id. at 67. This is sufficient to dispel the second mitigating factor. Spranger v. State (1986), Ind., 498 N.E.2d 931, cert. denied 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 536 (1987).
The fifth mitigating factor considered by the court was whether the defendant acted under the substantial domination of another person. Judge Maroc noted that Brown was "a young woman with borderline intellectual functioning with a dependent personality disorder." Id. at 90-91. He also noted the relationship between Brown's dependent personality and Coleman's dominant, manipulative personality. Id. at 91. The court determined, however, that Brown was not so substantially dominated that "she could not make a rational choice as to her own participation in repeated violent and criminal acts accompanied by repeated efforts to deceive intended victims and others to evade prosecution." Id.
Brown challenges the standard used by the trial court regarding what constitutes substantial domination. Overall, the court found that the domination by Coleman was not sufficient to excuse Brown's criminal conduct. We take this as a declaration that this mitigating factor was entitled to little weight. Under the facts in evidence, this finding was justified. Cf. Spranger, 498 N.E.2d at 947-48.
As a last possible mitigator, the court considered the possible effect of head trauma suffered by Brown as a child, and found no mitigating circumstance. All of the other possible mitigating factors in the statute were rejected by the trial court.
Appellant argues that the trial court should have considered her age as a possible mitigating factor. At the time of the Gary incident, Brown was nearly twenty years old. A relatively young age can be a possible mitigating factor. Van Cleave v. State (1987), Ind., 517 N.E.2d 356, 374, cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 LEd.2d 808 (1989). The level of brutality of these crimes against children, however, combined with Brown's testimony at the Ohio trial indicating her lack of conscience over her actions, serve to suggest that age is not a substantial miti-gator in this case.
The record thus shows that the trial court properly considered both aggravating and mitigating cireumstances and properly imposed the death penalty in accordance with the Indiana Code.
The judgment of the trial court is affirmed.
GIVAN, DICKSON and KRAHULIK, JJ., concur.
DeBRULER, J., dissents with opinion.
The State sought the death penalty based on any of three aggravating circumstances: the intentional killing of Tamika Turks while committing or attempting to commit child molesting upon AH., Ind.Code § 35-50-2-9(b)(1); Brown's previous conviction on two counts of murder in the Court of Common Pleas, Hamilton County, Ohio, under Cause No. B-843548, Ind.Code § 35-50-2-9(b)(7); and Brown's previous conviction on two counts of murder in that same court under Cause No. B-842559, Ind. Code § 35-50-2-9(b)(7).
All evidence presented at the guilt phase of trial was later incorporated into the penalty phase. Record at 3400. Defendant's objection therefore runs to the evidence's effect at the penalty phase as well. Brief of Appellant at 83-
Furthermore, viewing the record of the trial as a whole, we note that the charging instruments and penalty phase of the trial established that Brown had been previously found guilty in Ohio of the murder of Tonnie Storey. Under these circumstances, where the defendant was elsewhere found guilty of the uncharged crime beyond a reasonable doubt, we fail to see how a trial court could commit reversible error by finding on other grounds that the State met its threshold burden of showing the defendant committed the extrinsic offense. Cf. Gibbs, 538 N.E.2d at 940.
Appellant also complains that inadmissible references to uncharged robberies are included in the tape. The tape's passing references to uncharged robberies do not constitute reversible error. By the time of the penalty phase of the trial, the jury had heard evidence in the guilt phase of the brutal murder of Tamika Turks and the molestation and attempted murder of AH. The jury also heard a description of the murder of Tonnie Storey in the guilt phase. And the videotape at issue describes in detail the murder of Marlene Walters. After hearing all of this evidence, the jury is unlikely to have been influenced by the mere mention of the term "robbery" on the tape without even discussion of the circumstances of that uncharged crime. Kuchel v. State (1991), Ind., 570 N.E.2d 910, 916. Appellant also seems to suggest that references to a third uncharged murder on the tape should not have been admitted. Brown never points to a reference to this murder on the tape or the transcript. The claim made at trial that the State somehow imputed guilt to Brown in the tape by trying to place her in states where other murders occurred would not support reversible error. The trial court admonished the jury that the questions and demeanor of the attorneys in the tape were not admissible evidence. Record at 3875-76. Even if an explicit passing reference to an additional murder were made in the tape, its inclusion would not constitute reversible error under Kuchel when such lengthy discussions of other murders by the defendant were already before the jury. [OPINION BY DeBRULER, Justice, type=dissent] DeBRULER, Justice, dissenting. The admission of a criminal suspect's confession given during custodial police interrogation, over proper trial objection, is federal constitutional error where the interrogation was not preceded by a knowing and voluntary waiver by the suspect of the right to then confer with a lawyer. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The two keys to evaluating the 3:10 p.m. decision of Brown, a decision she made in Chicago before giving her oral confession, to refuse to sign a waiver form but to go ahead and answer her interrogator's questions so long as she could stop answering at any time, are (1) the previous 1:04 p.m. conduct in Evanston of Illinois Detective Schockweiler minutes after Brown said she wanted to speak to a lawyer and (2) the previous consistent presence and role of F.B.I. agent Gretz during the entire early period of detention before 8:10 p.m. Gretz first gave Brown her Miranda rights in Evanston at 1:04 p.m. and she responded by requesting to speak to a lawyer. Schockweiler was then present. No one attempted to aid or assist her in connecting with counsel. Instead, Gretz continued to question Brown as did Schock-weiler in the presence of Gretz. Gretz was also later present in the car as Brown was transported to Chicago in federal custody. Arriving in Chicago, Gretz gave Brown her Miranda rights the second time before commencing his interrogation there which resulted in Brown's decision to submit to interrogation without counsel. The conduct of Schockweiler at 1:04 p.m. back in Evanston, after Brown requested the opportunity to speak to a lawyer in response to her first receipt of advice of the right to counsel from Gretz, and after Gretz then finished collecting background information from Brown, is described in the testimony of Gretz. Gretz was able to describe the conduct of Schockweiler because he had made notes describing Schockweiler's conduct and refreshed his recollection from these notes. Gretz testified as follows: Q Were you present when Detective Sergeant Schockweiler asked questions of Deborah Brown? A I was. Q And what questions did he ask? A Detective Sergeant Schockweiler, because of the magnitude of the case, at that point was concerned as to whether or not there had been any other victim in the Evanston area. At that point, we did not know where Mr. Coleman or Ms. Brown had been staying and we were interested in trying to identify that as well as to determine whether or not there was anybody out there that they may have harmed, in particular whether or not anybody was injured that might need some medical assistance at that time. * * L * a a Q What was it that Officer Schockweiler asked Deborah Brown and what were her responses? * * % * * * A Okay, Detective Sergeant Schock-weiler had asked something to the effect whether or not she or Mr. Coleman had been involved with anybody else in the Evanston area that could be injured and Ms. Brown responded by saying, "cool," and that she and Mr. Brown (sic) had stayed the previous evening with a Jackie, last name unknown, who resided in the first floor apartment on the east side of Evans-ton. He then said well, how long had she been staying there, and she responded by saying that she had been there two (2) to three (8) days and that Jackie has two (2) children. Q Did Detective Schockweiler to your recollection ask any further questions? A Yes, sir, he did. Q What were those? A He asked Ms. Brown if she had gone to a Salvation Army thrift store this date and she said that she had walked from Jackie's to the thrift store where she had purchased a blue shirt and some blue jeans. That this custodial interrogation of Brown by Schockweiler after she had just expressed her desire to speak with a lawyer is an egregious violation of the constitutional rule governing the interrogation of suspects by police could not be clearer. Edwards v. Arizona 451 U.S. 477, 101 S.Ct. 1880, 68 LEd.2d 378 (1981). Her request was not respected, and her right to counsel at that point was simply overridden by Schockweiler in the presence and understanding of Gretz. That this unlawful police conduct did not itself directly produce evidence of guilt which the State might seek to exploit is beside the point in this case. Its importance is the role that it played in the events of the next two hours which included the conversation in the car during the trip to Chicago in the company of Gretz fully described in the majority opinion, the reiteration of the Miranda rights to Brown by Gretz upon arriving in Chicago and, finally, Brown's decision to refuse to sign the waiver of counsel form but to answer questions on her own. The events immediately preceding Brown's decision in Chicago were also provided by the testimony of Gretz. Q There's one part here that says, "you have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning." Did you ask her that precise question? A Yes, six, I did. Q Did you say anything else in reference to that question? A I asked her if she understood that sentence; she said yes. Q Did she say anything else in response to that particular question. A She did not. Q And the next question, you remember you said, "If you cannot afford a lawyer, one will be appoint for you before any questioning if you wish?" Did you advise her precisely as I just mentioned her right? A Yes, sir, I did. Q And did you add anything to that? A Yes, sir, I asked her if she understood what that meant, meaning that if she could not afford an attorney one would be appointed for her, and she said yes. P * G L # * Q Did anyone else advise her of her rights? A No they did not. Q After reading her the waiver of rights part of the form that we have been referring to, what happened? A She again declined to sign the waiver form portion, but again she said she would be willing to answer our questions as long as it was understood that she could stop at any time and it was agreed to. The interrogation commenced during which Brown gave an oral confession wherein she described her involvement in the murder of Tamika Turks and the molestation and attempted murder of Annie Hillard. The interrogation ceased at 5:83 p.m. when Brown refused to answer any additional questions and again asked to speak to her attorney. She provided Gretz with a name and telephone number. With respect to this event, Gretz testified as follows: Q -Is it finally-finally, is it correct that Deborah Brown was not afforded an opportunity to speak to an attorney until after her statement was taken by you? A She was not afforded the opportunity to speak with an attorney from the time she was arrested until the time that I placed a phone call after obtaining Mr. Hauser's name and phone number, that's correct. Q That was after she gave a statement to you? A Yes, it was. The initial overriding of Brown's express wish to speak with a-lawyer by Schockweiler in the presence of Gretz, coupled with the refusal of Brown to sign the written waiver of counsel when read her rights the second time by Gretz constitute two events and circumstances within all the events and cireumstances occurring between Brown's 1:04 p.m. expression of her desire to speak with a lawyer and her 8:00 p.m. agreement to speak alone and without a lawyer so long as she could stop answering questions at any time, that serve to distinguish this case from Oregon v. Bradshaw 462 U.S. 1039, 108 S.Ct. 2830, 77 L.Ed.2d 405 (1983). In Bradshaw, the suspect's initial expression of his desire to have an attorney was serupulously honored as the officer immediately terminated the conversation when the request was made. By contrast, here, Schockweiler commenced an interrogation after Brown expressed this same desire. Further, in Bradshaw, the suspect signed a written waiver of counsel before the later interrogation that resulted in the confession was initiated. By contrast, here, Brown refused to sign the written waiver of counsel deciding to counsel herself. Bradshaw's experience with the promise by the police of the right to counsel had been positive. Brown's experience by contrast was that it was hollow. In her recent experience, her expression of the desire to speak with a lawyer would be met by more interrogation and she could not expect police to help her reach a lawyer. She was nineteen years old at the time. There was no voluntary and intelligent waiver by Brown of her right to counsel before she gave her oral confession during custodial interrogation. It was therefore constitutional error to admit her oral confession at trial. The error was clearly not harmless beyond a reasonable doubt, and no such assertion is made by the State.
Deborah Denise BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 45S00-8703-CR-271.
Supreme Court of Indiana.
Dec. 18, 1991.
Daniel Toomey, Merrillville, for appellant.
Linley E. Pearsofi, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
[OPINION BY SHEPARD, Chief Justice. type=majority]
PETITION FOR REHEARING
SHEPARD, Chief Justice.
Appellant Deborah Denise Brown seeks rehearing of our decision affirming her convictions for murder, attempted murder, and child molesting and the death penalty. Brown v. State (1991), Ind., 577 N.E.2d 221.
The sole grounds for rehearing concerns our determination that the trial court properly admitted Brown's confessions. Brown made a series of statements in the Evans-ton, Illinois, police department, on the way to the federal building in Chicago, and while in the federal building. Counsel cites our statement that when Brown initiated conversation in the squad car on the way down she was "away from both the Evans-ton Police Department and the officers who questioned her and from whom she requested an attorney." Id. at 230. Counsel is right to point out that in fact FBI Special Agent James Gretz was in the car on the way downtown. Brown had indicated to Gretz back in Evanston that she wished to speak with counsel. Gretz had ceased interrogation concerning the crime after that request. His presence in the squad car does not alter our conclusion that under the totality of the circumstances test Brown's statements were voluntary.
Accordingly, we deny Brown's petition for rehearing.
GIVAN, DICKSON and KRAHULIK, JJ., concur.
DeBRULER, J., would grant rehearing.
Debra Denise BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 45S00-9212-PD-939.
Supreme Court of Indiana.
July 17, 1998.
Rehearing Denied Nov. 20, 1998.
Susan K. Carpenter, Public Defender, Indianapolis, Ken Murray, Columbus, OH, Janet S. Dowling, Evans, Dowling & Youngc-ourt, P.C., Indianapolis, for Appellant.
Jeffrey A. Modisett, Attorney General, Christopher L. LaFuse, Deputy Attorney General, Indianapolis, for Appellee.
[OPINION BY SULLIVAN, Justice. type=majority]
SULLIVAN, Justice.
Petitioner Debra Denise Brown appeals the denial of post-conviction relief with respect to her convictions for Murder and Attempted Murder, and her sentence of death. We earlier affirmed these convictions and this sentence on direct appeal. Brown v. State, 577 N.E.2d 221 (Ind.1991), reh’g denied, 583 N.E.2d 125, cert. denied, 506 U.S. 833, 113 S.Ct. 101, 121 L.Ed.2d 61 (1992). We now affirm the denial of post-conviction relief.
Background
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).
Discussion
I
Brown contends that she is entitled to post-conviction relief because the State violated its obligation to disclose material exculpatory evidence by failing to disclose prior to her trial certain psychological profiles and related materials compiled by the FBI. As noted in Background, supra, Brown and Coleman had been- interstate fugitives. As such, the FBI prepared a psychological profile and related material on Brown to assist in her capture. During preparation for Brown’s trial, Indiana authorities had in their possession a substantial volume of FBI materials. When the FBI sought to have these materials returned, Brown’s trial counsel protested, contending that he had not yet had time to review all of the materials. Upon a representation from the State that the files contained no exculpatory material, the trial judge permitted the materials to be returned to the FBI..
In preparation for post-conviction proceedings, Brown obtained four documents in the possession of the FBI which she contends are exculpatory. Brown is, of course, correct that the State has an affirmative duty to disclose evidence favorable to a criminal defendant. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Brown raises several interesting questions as to whether the State had a pre-trial obligation to disclose these four documents. However, an allegation of a Brady violation requires a demonstration that the undisclosed favorable evidence “could be reasonably taken to put the whole case in such a different light as to undermine confidence” in the trial court’s judgment. Kyles, 514 U.S. at 435, 115 S.Ct. 1555. We elect to proceed to that inquiry first. Because we find that these four documents could not be reasonably taken to put the whole case in such a different light as to undermine confidence in the trial court’s judgment, we hold that Brown is not entitled to post-conviction relief on this contention.
A
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 th'at 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. Acting under the influence of an extreme emotional disturbance is another statutory mitigating circumstance. And the mental health of the defendant is frequently considered as a mitigating circumstance under the “catch-all” mitigator. These four documents implicate each of these circumstances.
The first FBI document, Brown’s Exhibit 31, states in pertinent part:
Coleman has a violent temper, and when he is upset he is uncontrollable. * * * Ever since Coleman’s mother died of cancer, Coleman seems to have gone off his rocker. * * * Debra Denise Brown has lived with Coleman and his blind grandmother for the past two years. Brown has lost about 35 pounds during this time. She has been virtually a prisoner in the house. If she left without Coleman, he would beat her. During [an] interview with FBI agents, Brown was very docile. She admitted that scars and scratches on her face were from Coleman. It is believed that she is completely under the control of Coleman.
(R. at 1894-96.) The second and third FBI documents, Brown’s Exhibits 32 and 33, contain essentially the same information. (R. at 1898; 1902.) The fourth FBI document, Brown’s Exhibit 36, is an extensive report prepared by the FBI regarding her background, including an interview with Lottie Mae Brown, Brown’s mother. The report indicates that:
1. Brown’s father had severe mental problems, drank to excess, and physically abused family members including the children.
2. Brown had experienced a drug overdose which required hospitalization in 1980 and may have been using drugs regularly.
3. Brown’s personality changed drastically after she met Coleman.
4. Brown moved in with Coleman and would not talk to her family, but would look to Coleman to answer for her.
5. Brown’s mother felt that Coleman completely controlled Brown and that she would do whatever Coleman asked her to do; Brown’s mother also believed that Coleman was beating Brown and using her as a prostitute.
6. Brown’s mother had seen Brown with her face “all beaten up” during the time Brown was living with Coleman.
(R. at 1931.)
B
From the very outset of the penalty phase, defense counsel made it clear that his prinei-pal 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. Su-ran, 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
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 Weehsler IQ test and that she functioned as mildly retarded. His examination showed her to have “a very depraved background” and that she never evolved to the level of emotional development consistent with her age. More specifically, in his interview with her dealing with her family and background, he learned that she had been the subject of “frequent and repeated physical abuse, sexual abuse, and a very strong sense of rejection and abandonment.” Dr. Suran found Brown to be the victim of severe environmental deprivation.
It was Dr. Suran’s expert opinion that Brown suffered from borderline retardation,' depression, and had a dependent personality or passive dependent personality. Dr. Suran also made reference to Brown’s childhood abuse, collected school and medical records, and noted her childhood mental retardation diagnosis.
Two statements from Dr. Suran’s testimony bear citation here:
[Independent 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
(T.R. at 3757.)
The trial court gave reasonably extensive
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. While the FBI reports contained information relevant to mitigating circumstances appropriate for consideration in the penalty phase of Brown’s trial, trial counsel in fact argued those mitigating circumstances vigorously with the help of expert testimony and the trial court clearly took them into account in pronouncing sentence.
C
In a related argument, Brown contends that the FBI wrongfully denied her access to a substantial quantity of documents concerning her case. She argues that this denial has prevented her from fully and adequately investigating, preparing and presenting her claim for post-conviction relief. She further asserts that as a result certain federal and state constitutional rights have been violated.
Brown has not presented us with any basis for concluding that her ability to assert entitlement to post-conviction relief has been limited in any material way or that any of her constitutional rights have been violated as a result. Brown’s claim appears to be that there might be additional information in the FBI files of the character discussed in part I-A, supra, ie., 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 fines 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 posteonvietion 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)).
II
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, — U.S. -, 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 fight of all the circumstances, the identified acts or wrongs of counsel were outside the range of professionally competent assistance. Id. This showing is made by demonstrating that counsel’s performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind.1991)). “Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the defense was inadequate.” Davis v. State, 675 N.E.2d 1097, 1100 (Ind.1996) (quoting Terry v. State, 465 N.E.2d 1085, 1089 (Ind.1984)). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel’s performance was so prejudicial that it deprived defendant or petitioner of a fair trial. Lowery, 640 N.E.2d at 1041. See Games v. State, 690 N.E.2d 211, 213 (Ind.1997). We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable. Lowery, 640 N.E.2d at 1041 (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind.1991)).
A
Brown’s claim of failure fully to investigate, develop and present penalty phase evidence focuses on four areas: (1) her family and upbringing; (2) her intellectual and educational deficits; (3) her absence of any criminal record or history of violence, and her generally positive character, prior to meeting Alton Coleman; and (4) she was suffering from Battered Women’s Syndrome.
At the post-conviction hearing, Brown presented extensive evidence in each of these areas. Nevertheless, the post-conviction court found that she had not been denied the effective assistance of counsel in this regard because prejudice had not been shown. The post-conviction court concluded that given the seriousness of the crimes for which Brown had been convicted, the jury was unlikely to reach a different result even with this evidence.
Without reaching the issue of prejudice, we agree with the post-conviction court’s conclusion because we do not find counsel’s performance to have been deficient. As discussed in part I, supra, counsel’s strategy at the penalty phase was to argue that Brown should not be sentenced to death because she had been acting “under the substantial domination of Alton Coleman” when she committed the crimes for which she had been convicted. In part I-B, supra, we detailed the testimony elicited by defense counsel at the penalty phase. That recitation demonstrates that counsel did present to the jury at the penalty phase of Brown’s trial evidence of her difficult family upbringing, her limited educational and intellectual abilities, her positive record of behavior prior to meeting Alton Coleman and, if not that she was explicitly the victim of Battered Women’s Syndrome, that she functionally suffered from it at Coleman’s hands. It appears to us that Brown’s quarrel with her trial counsel is over the amount of evidence presented in these three areas at trial, not whether any investigation, development or presentation took place.
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 ease as possible that Brown committed the crimes for which she had been convicted under the domination and control of Coleman and that her submission to his domination and control was accounted for by her difficult upbringing, her limited IQ and her mental illness of dependent personality disorder. Brown has not demonstrated deficient performance by her trial counsel in this regard.
B
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 reentry 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. Coeonis, a social worker with experience as an investigator of mitigating circumstances, which was to have been used as the basis of Dr. Suran’s testimony. Br. of Appellant at 101. Although the State’s objection to the introduction of this report was sustained, a copy is included in the record. (R. at 1908-17.)
5. The post-conviction testimony of Brown’s trial counsel, Mr. Toomey, as to whether he thought and felt he gave Brown effective representation at trial. Br. of Appellant at 102. The post-conviction court sustained the State’s objection on grounds that the question of counsel’s effectiveness was for the court to decide. (R. at 1430.)
We find no error with respect to item (2), the exclusion of the affidavits. See Roche, 690 N.E.2d at 1131 (affidavits prepared for similar purpose excluded). We also find no error with respect to item (5), the prohibition on counsel’s testifying as to his own ineffectiveness. Compare Ind.Evidence Rule 704(a) (testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact) and Evid.R. 704(b) (witnesses may not testify to opinions concerning legal conclusions).
Items (1), (3) and (4) all relate to Brown’s family and upbringing, her intellectual and emotional development, her lack of criminal history before meeting Alton Coleman, and her relationship with Coleman. The post-conviction court generally excluded this information on grounds that, even if it had been presented to the jury during the penalty phase of Brown’s trial, it “would not have made a difference to the jury’s recommendation or the trial court’s sentence.” (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.
III
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.
IV
Brown contends that she was denied the effective assistance of appellate counsel to which she was entitled in several respects. As with claims of ineffective assistance of trial counsel, we analyze claims of ineffective assistance of appellate counsel according to the two-part test announced in Strickland, 466 U.S. at 668, 104 S.Ct. 2052. See, e.g., Lowery, 640 N.E.2d at 1048 (“standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel”). A petitioner claiming ineffective assistance of appellate counsel must show both deficient performance and resulting prejudice. Roche, 690 N.E.2d at 1120. The failure to establish either prong will cause the claim to fail. Id.
Brown first contends that her appellate counsel (who was the same as trial counsel) was ineffective for failing to raise on direct appeal the issues discussed in parts IV-A and IV-B, infra. These were issues, Brown points out, that counsel raised in his motion to correct errors following trial but did not raise on direct appeal. 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-fiivolous 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 irom 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.
A
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 kidnap-ing 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 ease 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.
B
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 senteneer 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 senteneer 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 senteneer to arbitrarily apply any standard of proof to the existence of mitigators it chooses. While the senteneer might apply some low standard of proof to mitigating circumstances, it is equally likely that the senteneer might apply a standard of proof which is higher than contemplated, possibly higher than proof beyond a reasonable doubt. Furthermore, the senteneer 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 senteneer 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, 614 N.E.2d 80 (Ind.1987))
C
Brown contends that appellate counsel was ineffective for failing to claim on direct appeal that the Indiana death penalty statute was unconstitutional as applied to Brown in this case because it failed to narrow the class of persons eligible for capital punishment. Specifically, she argues that the first aggravating circumstance alleged by the State in support of its death penalty request, that Brown intentionally killed while committing child molesting, duplicated the elements of the underlying murder and child molesting charges. She begins by observing that the United States Supreme Court held in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), to the effect that a legislature may achieve the constitutionally required narrowing either by defining certain murders as capital offenses or by requiring findings of aggravating circumstances at the penalty phase. Noting that Indiana has chosen the later approach, she contends that in her situation no narrowing occurred because the aggravating circumstance charged was no different than the underlying offenses with which she was charged. As the State properly points out, this court has previously held that such a contention misconstrues the narrowing function of our death penalty statute:
Appellant ... claims that the overlap between the aggravating circumstance found at the sentencing phase and the convictions at the guilt phase violates constitutional principles by eliminating the critical narrowing function of the sentencing process, allowing the State to enter the penalty phase with the aggravating circumstance already proven beyond a reasonable doubt. Our death penalty statute requires the senteneer 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[J
Baird v. State, 604 N.E.2d 1170, 1183 (Ind.1992).
D
Brown contends that appellate counsel was ineffective for failing to raise three claims of trial court error in instructing the jury. 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”).
V
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. 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.
Conclusion
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.
SHEPARD, C.J., and DICKSON, SELBY and BOEHM, JJ., concur.
Ind.Code § 35-42-1-1 (1982).
Ind.Code §§ 35-41-5-1 & 35-41-1-1 (1982).
Ind.Code § 35-50-2-9 (Supp.1983). Unless otherwise indicated, references to Ind.Code § 35-50-2-9 refer to the version published in the 1983 Supplement to the Indiana Code, the death penalty statute in effect at the time the crimes at issue were committed.
Following oral argument in this case. Brown filed a motion seeking “judgment on the arguments and concessions of the State.” She contends that certain statements made by the deputy attorney general arguing the case concerning the FBI material "effectively conceded error of constitutional magnitude.” Appellant's Verified Motion for Judgment on the Arguments and Concessions of the State (July 25, 1997). To the extent the State made any concessions in this regard, the State most assuredly did not concede that the FBI documents introduced at the post-conviction proceeding "could be reasonably taken to put the whole case in such a different light as to undermine confidence” in the trial court’s judgment. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Appellant’s motion is denied. For many years in capital cases, this Court has greatly appreciated and valued the willingness of the State to acknowledge the legitimacy of contentions made by criminal defendants and weaknesses in its own cases. Brown’s attempt to turn into an admission of constitutional error the State’s longstanding policy of forthright and candid discussion of the issues is not well taken. .Ind.Code § 35-50-2-9(c)(5) ("The mitigating circumstances that may be considered under this section are as follows: ... The defendant acted under the substantial domination of another person.”).
Ind.Code § 35-50-2-9(c)(2) ("The mitigating circumstances that may be considered under this section are as follows: ... The defendant was under the influence of extreme mental or emotional disturbance when he committed the murder.”).
Ind.Code § 35-50-2-9(c)(7) ("The mitigating circumstances that may be considered under this section are as follows: ... Any other circumstances appropriate for consideration.”).
Citations to the record of post-conviction proceedings are denominated as "R.”; to the trial record as "T.R.”
The post-conviction court also concluded that this evidence did not constitute exculpatory evidence and that there was no evidence before it
Brown represented to us that she pursued, in a timely manner, all available agency and administrative appeals and that these appeals were denied. Appellant’s Verified Motion to Compensate and Authorize Counsel to Pursue Necessary Collateral Litigation (Dec. 20, 1996). She then sought a mandate from this court for funds to litigate a Freedom of Information Act claim against the FBI in federal court. We denied this request by Order dated January 6, 1997.
The post-conviction court excluded some of this evidence. Brown’s claim of error in this regard is discussed in part II-B, infra.
While Brown asserts that she was the victim of Battered Women's Syndrome in her post-conviction appeal brief, she points us to no evidence presented to the post-conviction court that actually uses the term "Battered Women's Syndrome.” .We note in this regard Brown's use of the adverb “fully” to describe counsel’s alleged deficient performance, e.g., "Trial counsel’s failure to fully investigate, develop and present penalty phase evidence denied Brown the effective assistance of counsel." Br. of Appellant at 51 (emphasis supplied).
As Brown points out, there is language in the post-conviction court’s findings and conclusions that suggests that although the post-conviction court announced during the proceedings that the additional evidence of mitigating circumstances was being excluded, the court did take it into account in its findings. See Br. of Appellant at 92.
At the time of Brown's direct appeal, raising an issue in a motion to correct errors was a prerequisite to appellate review.
Brown also challenges these and an additional instruction as erroneous. Claims of trial court error in instructing the jury not raised on direct appeal are not available for post-conviction review unless the failure to raise them was the result of ineffective assistance of counsel or, perhaps, unless they constituted fundamental error. Although Brown refers to these instructions as "fundamentally erroneous" in the caption to the relevant section of her brief, the narrative portion of that section makes no effort to demonstrate fundamental error. We find such claims, even if available under the fundamental error doctrine, waived for failure to comply with Ind.Appellate Rule 8.3(A)(7).
The conflict of interest present in the sole case cited by Brown involved two lawyers jointly engaged to represent three co-defendants at separate trials. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Such a conflict is, of course, very different from the one Brown asserts.