On the night of May 29, 1984, nine-year-old Vernita Wheat left her mother's apartment building in Kenosha, Wisconsin, with a man her mother knew as Robert Knight. He had told the family he lived two blocks away. He had eaten dinner with them, played with the children and taken them to a carnival, and the name on the identification card he showed was false. He was Alton Coleman, who lived across the state line in Waukegan, Illinois. Patrons of a Kenosha bar saw him with the girl that night, a cab driver took them to Waukegan, and on June 19 two men found her body in the bathroom of an abandoned building there, two blocks from the barbecue stand where the cab had let them out. Her hands were bound and a cable was wound around her chest and neck.
By then Coleman and Debra Brown had crossed Indiana, Michigan, Ohio and Kentucky. The courts list Tamika Turks, seven, strangled in a wooded area of Gary, Indiana; Donna Williams of Gary, whose body was found in Detroit; Virginia Temple and her nine-year-old daughter, Rachelle, in Toledo; Tonnie Storey, fifteen, in Cincinnati; Marlene Walters, beaten to death in her home in Norwood, Ohio; and Eugene Scott, left in a ditch near Indianapolis. Three states then tried him separately, and all three sentenced him to death. Indiana convicted him in April 1986 of Tamika's murder and of the molesting and attempted murder of the girl who had been with her and survived. In Lake County, Illinois, he chose six days before trial to represent himself, and was convicted of Vernita Wheat's murder and kidnapping. Hamilton County, Ohio, tried him for Tonnie Storey and for Marlene Walters.
These are eight appellate opinions from that record, decided between 1989 and 2001: the Illinois Supreme Court on the Wheat conviction and on his post-conviction petition, the Seventh Circuit on his federal habeas petition in that case, three rulings of the Indiana Supreme Court in the Turks case, and two Sixth Circuit rulings on the Ohio convictions. Every court affirmed until the last. On October 10, 2001, a divided Sixth Circuit panel upheld the Storey conviction but set aside the death sentence, holding that his lawyers had been ineffective at the penalty phase. The decision did not reach the Walters case, which another panel of the same court had rejected in March, and it was for Marlene Walters' murder that Ohio put Coleman to death by lethal injection at the Southern Ohio Correctional Facility in Lucasville on April 26, 2002. He was forty-six. Neither the Illinois nor the Indiana sentence was ever carried out.
Roughly sixty-six thousand words, and not the whole record. The Ohio Supreme Court's own decisions on the two Hamilton County convictions are missing: the Sixth Circuit quotes the Storey facts at length from State v. Coleman, 45 Ohio St.3d 298 (1989), but that opinion and the Walters appeal, 37 Ohio St.3d 286 (1988), are cited here, not printed. So are the trial transcripts the courts keep pointing to. What is here comes in two kinds. The recitals of the crimes are findings, taken by each court from a jury's verdict. The long passages on Coleman's childhood, his grandmother, the nickname he hated, the jurors who said they saw Debra Brown outside the courtroom and the lawyers' workloads in Lake County are what his post-conviction counsel offered, and the courts weighed that material without adopting it; read those pages as the defense's case.
The courts do not agree on every detail. Illinois describes the Gary survivor as Tamika's nine-year-old companion; Indiana says she was ten and calls Tamika her niece. The 1990 Indiana opinion spells the victim Tamika Turk and Coleman's companion Deborah Brown, and the two Illinois opinions spell the cab driver's surname two different ways. When an Illinois opinion says Tonnie Storey's body was found in "Evanston, Ohio," it means the Evanston neighborhood of Cincinnati, not the Illinois suburb of the same name. The typesetting slips stand as printed, among them a statute cited as 85-42-4-8 for 35-42-4-8 and a footnote reading "will he cited."
The murdered are named, as the courts named them. The living people who testified, or who appear as survivors or family, are reduced to initials, and we have made that change throughout. The Indiana court already called the surviving girl A.H.; Illinois printed her full name, and here she is A.H. in every opinion. Vernita's mother is J.W. and her young brother B. Marlene Walters' husband, who survived the Norwood beating with brain damage, is H.W., and their daughter S.W. The minister and his wife in Dayton who took Coleman and Brown into their home for three days in July 1984 are the Reverend and Mrs. M.G. Neighbors, cab driver, bar patrons, friends, Coleman's sister and the five Indiana jurors who described seeing Brown during the trial also appear by initials. "Robert Knight" stays, because it was the alias Coleman gave. Judges, lawyers, police officers and physicians keep their names.
The text is from the published reports, not a scan, and has been rejoined into paragraphs without any other change. The captures carry each opinion's footnotes but not the reference numbers in the text, so we have gathered them under a heading at the end of the opinion they belong to; five of the eight have them. The Sixth Circuit's October 2001 opinion cites a Plain Dealer article of August 23, 1999, on race and Ohio's death row, and only the citation is reproduced. Court opinions are public records, free to read, quote and republish in full.
(No. 64818.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ALTON COLEMAN, Appellant.
Opinion filed June 19, 1989.
Rehearing denied September 29, 1989.
Charles M. Schiedel, Deputy Defender, of the Office of the State Appellate Defender, of Springfield, and Elizabeth Dale Caddick, law student, for appellant.
Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Marcia L. Friedl, Assistant Attorneys General, of Chicago, of counsel), for the People.
[OPINION BY CHIEF JUSTICE MORAN type=majority]
CHIEF JUSTICE MORAN
delivered the opinion of the court:
The defendant, Alton Coleman, was charged by indictment in the circuit court of Lake County for the murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(2), (a)(3)) and aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 10 — 2(a)(3)) of Vernita Wheat. A jury found the defendant guilty of each charge. The State requested a hearing to consider whether the death penalty should be imposed. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(d).) The same jury found the defendant eligible for the death penalty and found there were no mitigating factors sufficient to preclude a sentence of death. The circuit court sentenced the defendant to death and to a 15-year term of imprisonment on the aggravated kidnapping conviction. The death sentence was stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 107 Ill. 2d R. 603).
The issues presented for review are: (1) whether the defendant made a knowing and intelligent waiver of counsel at the guilt and sentencing phases of his trial; (2) whether the circuit court erred in denying the defendant’s motion to suppress; (3) whether the jury improperly relied on section 9 — 1(b)(7) to establish the defendant’s eligibility for the death sentence; (4) whether the defendant was denied a fair sentencing hearing because the prosecutor characterized him as an “animal” during closing arguments; ánd (5) whether the defendant was denied a fair sentencing hearing because the jury was not instructed on the alternative mandatory sentence of natural life imprisonment. The defendant also challenges the constitutionality of the Illinois death penalty statute.
The following evidence was adduced at the guilt phase of the defendant’s trial. The partially decomposed body of nine-year-old Vernita Wheat was discovered in an abandoned building in Waukegan, Illinois, on June 19, 1984. Her chest, neck and hands were bound with cable wire. Dr. Larry Blum, assigned to the case, determined that the cause of death was ligature strangulation. Dr. Blum opined that the death occurred approximately three weeks prior to the discovery of the body. Dr. Bernard Greenberg, a forensic entomologist, studied the development of the fly larvae found on the victim’s body and opined that the body was deposited in the building on either May 29 or May 30.
J.W., the victim’s mother, testified that at the time of the offense she resided in Kenosha, Wisconsin, with her daughter, Vernita, and her seven-year-old son, B.. At the end of April or beginning of May of 1984, the defendant introduced himself to J.W. as Robert Knight, showed her an identification card bearing that name, and told her he lived two blocks away. The defendant actually lived in Waukegan. That evening the defendant ate dinner with J.W. at her apartment and played with her children. Several days later the defendant returned to J.W.’s apartment, spent time with J.W. and her children, and met J.W.’s cousin, W.P.. On May 29, 1984, the defendant returned to J.W.’s apartment building and without invitation entered the apartment of J.W.’s neighbor, E.R., whom J.W. was visiting. J.W. introduced the defendant to E.R.. With J.W.’s permission, the defendant then took the children to a carnival, and returned them to J.W.’s apartment by 10:15 p.m. J.W. then allowed Vernita to accompany the defendant to his apartment “to pick up a stereo system.” When the defendant had not returned Vernita by 10:45 p.m., J.W. and E.R. began searching for her. Approximately one hour later J.W. telephoned the police.
On the following day, J.W. and E.R. identified the defendant’s photograph at the police station. J.W., E.R. and W.P. identified the defendant in court.
E.Z., a patron of an establishment in Kenosha called the “400 Club,” testified that a black man and a black girl entered the establishment at approximately 11:35 p.m. on May 29, 1984, and the man immediately used the telephone. A few minutes later a cab arrived to pick up the man and girl. E.Z. identified a photograph of Vernita Wheat as the girl he had seen at the 400 Club.
D.M., another patron, corroborated the testimony of E.Z.. D.M. identified the defendant and identified a photograph of Vernita Wheat as the man and girl he had seen at the 400 Club.
K.H., a cab driver, testified that his cab was dispatched to the 400 Club at 11:35 p.m. on May 29, 1984. Once he arrived, a black man and black girl entered his cab. The man directed K.H. to drive them to Zion, Illinois, “to pick up a stereo system.” When they arrived at the designated house, the man tapped K.H. on the shoulder and told him to drive them to Waukegan. K.H. drove the man and girl to “Slater’s Barbecue” in Waukegan.
J.A., an employee at the Diamond Scrap Yard located next to Slater’s Barbecue, testified that he was working during the early morning hours of May 30, 1984. At approximately 1:30 a.m., he saw a black man and a black girl walking “in the middle of the street as if they had came out of Slater’s.”
On behalf of the defense, A.R. testified that she saw the defendant and Vernita Wheat walking past her house during the afternoon of May 30, 1984. A.R. waved to Vernita and Vernita waved back.
P.P., a friend of the defendant, testified that the defendant came to her residence during the morning of May 31, 1984, and asked her to leave town with him. She declined.
J.T., another friend of the defendant, testified that he drove the defendant to a “record shop” in Chicago at approximately noon on May 31, 1984, so that the defendant could obtain false identification cards. Afterwards, J.T. drove the defendant to a train station in Evanston, Illinois.
T.C., the defendant’s sister, testified that the defendant visited with her briefly at her house in Waukegan at approximately 7 p.m. on May 31, 1984. She informed the defendant that the police had asked her about a “girl in Kenosha.”
Officer Michael Bettasso testified that he was dispatched to T.C.’s house at 7 p.m. on May 31, 1984. He stated that the police had information that a cab had taken the defendant to that location. When Officer Bettasso arrived, he saw a black man, whom he identified as the defendant, leaving the house. The defendant saw Officer Bettasso, turned and fled. Officer Bettasso pursued the defendant, but was unable to apprehend him.
On June 19, 1984, A.G. and M.S. discovered Vernita Wheat’s body in the bathroom of an abandoned building in Waukegan. The abandoned building was located two blocks from Slater’s Barbecue. A.G. telephoned the police. After an investigation of the premises, two fingerprints were discovered on the door of the bathroom: the first was unidentified and the second was identified as the defendant’s.
The defendant was arrested in Evanston, Illinois, at approximately 10:40 a.m. on July 20, 1984. That afternoon the defendant told the police that he knew J.W., but denied that he knew or killed Vernita Wheat.
A jury found the defendant guilty of the murder and aggravated kidnapping of Vernita Wheat. Following the conviction, the State requested a hearing to determine whether the death penalty should be imposed. After the first phase of the sentencing hearing, the jury found that the defendant was at least 18 years of age at the time of the offense (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)), and that there were two statutory aggravating factors in existence rendering the defendant eligible for the death penalty: (1) the defendant had previously been convicted of intentional murder in Indiana and Ohio, and the laws of those States were substantially similar to the laws of the State of Illinois (Ill. Rev. Stat. 1983, ch. 38, par. 9— 1(b)(3)); and (2) the victim was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(7)). The jury rejected the State’s argument that the defendant was eligible for the death penalty under section 9 — 1(b)(6) (the murdered individual was killed in the course of a felony by the defendant) (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6)).
At the second phase of the sentencing hearing, the State presented the following evidence in aggravation. The defendant was convicted and sentenced to death for the murders of Tamika Turks of Indiana and Tonnie Storey and Marlene Walters of Ohio.
The body of seven-year-old Tamika Turks was discovered in a wooded area of Gary, Indiana, on June 18, 1984. The cause of her death was ligature strangulation. At the defendant’s trial for that offense, A.H., Tamika’s nine-year-old companion, testified that the defendant and a woman named Debra Brown abducted the two girls and took them to a wooded area, where A.H. witnessed the defendant beat and strangle Tamika. A.H. was then forced to have oral sex with the defendant and Brown, and the defendant raped her. The defendant and Brown then strangled A.H. with a belt. She lost consciousness and was left for dead. Soon thereafter, A.H.’s mother discovered A.H. lying in the wooded area and took her to a hospital. A.H.’s ripped vaginal area required surgery.
The partially decomposed body of 15-year-old Tonnie Storey was discovered in an abandoned building in Evanston, Ohio, on July 21, 1984. The cause of her death was strangulation. At the defendant’s trial for that offense, Tonnie’s parents testified that they last saw Tonnie on July 11, 1984. Y.L., Tonnie’s classmate, testified that she saw Tonnie walking with the defendant and Brown at approximately 6 p.m. on July 11, 1984. A fingerprint identified as Brown’s was discovered on Tonnie’s Michael Jackson button, which was found 10 feet from her body. A shoeprint matching the defendant’s was also discovered near Tonnie’s body.
The body of Marlene Walters was discovered in her house in Norwood, Ohio, on July 13, 1984. At the defendant’s trial for that offense, H.W., Marlene’s husband, testified that the defendant and Brown attacked him in their house at approximately 10:30 a.m. on July 13, 1984. H.W. lost consciousness and remained comatose until September 1984. Marlene’s body was discovered that evening. Her death was caused by blows to the head resulting in skull fractures and brain injuries. The defendant’s fingerprints were found both inside and outside the house.
The State presented additional evidence in aggravation. First, the State presented evidence detailing the defendant’s involvement in four other murders: Donna Williams of Gary, Indiana, whose body was discovered in Detroit, Michigan, on July 11, 1984; Virginia Temple and her nine-year-old daughter, Rachelle, whose bodies were discovered in their house in Toledo, Ohio, on July 7, 1984; and Eugene Scott, whose body was discovered in a ditch near Indianapolis, Indiana, on July 19, 1984. Second, the State presented evidence showing the defendant’s involvement in several other offenses, including attempted murder, sexual assault, robbery, and kidnapping. Finally, the State revealed that at the time the defendant murdered Vernita Wheat, he was on bond for another charge in Illinois.
The defendant then presented the following evidence in mitigation. Reverend Lloyd R. Davis, pastor of the Christian Fellowship Church in Waukegan, testified that he had known the defendant since August 4, 1986, and it was his belief that the defendant desired to make peace with God and to be spiritually saved:
After considering all of the evidence in aggravation and mitigation, the jury found that there were no mitigating factors sufficient to preclude a sentence of death.
The defendant first asserts that he did not make a knowing and intelligent waiver of counsel at the guilt and sentencing phases of his trial. The defendant was represented by two public defenders: Mike Melius and Joan Pantsios. Six days before his trial, the defendant filed a motion to proceed pro se. The circuit court admonished the defendant of his right to counsel and, as an indigent, his right to court-appointed counsel. The circuit court further admonished the defendant of the nature of the charges against him, and informed him that the maximum sentence prescribed by law was the death penalty and the minimum sentence prescribed by law was a 20-year term of imprisonment. We note that the trial judge incorrectly admonished the defendant of the minimum sentence. Under Illinois law, a defendant who has previously been convicted of murder is subject to a minimum sentence of natural life imprisonment. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8 — 1(a)(1)(c).) As the defendant had previously been convicted of murder in Indiana and Ohio, the minimum sentence he was eligible to receive was natural life imprisonment.
After admonishing the defendant, the circuit court granted his motion to proceed pro se and directed Melius and Pantsios to serve as advisors. After the guilt phase of his trial, the defendant requested that counsel be reappointed to represent him at his sentencing hearing. The circuit court reappointed Melius and Pantsios. After the first phase of his sentencing hearing, the defendant again filed a motion to proceed pro se. The circuit court admonished the defendant exactly as it did during the guilt phase of his trial, granted the defendant’s motion to proceed pro se and directed Melius and Pantsios to serve as advisors.
The defendant contends that he did not make a knowing and intelligent waiver of counsel because the circuit court did not properly admonish him of the minimum sentence in accordance with Rule 401(a) (107 Ill. 2d R. 401(a)). Supreme Court Rule 401(a) provides:
“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” (107 Ill. 2d R. 401(a).)
The defendant emphasizes that supreme court rules are rules of procedure and it is incumbent upon courts to follow them. (People v. Wilk (1988), 124 Ill. 2d 93, 103; see People v. Walker (1982), 91 Ill. 2d 502, 517 (high standard of procedural accuracy is required in the imposition of the death penalty).) In response, the State argues that the circuit court substantially complied with Rule 401(a), and that despite its incorrect admonishment of the minimum sentence, the defendant made a knowing and intelligent waiver of counsel.
Substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver of counsel if the record indicates that the waiver was made knowingly and intelligently. (People v. Johnson (1987), 119 Ill. 2d 119, 132.) In that case, Johnson moved to proceed pro se-, in admonishing him the circuit court incorrectly stated that the minimum sentence was a “number of years” rather than natural life imprisonment. With the exception of the minimum sentence, Johnson was properly admonished pursuant to Rule 401(a). The record indicated that despite the incorrect admonishment of the minimum sentence, Johnson knew that the minimum sentence was natural life imprisonment. The record further indicated that Johnson attempted to manipulate the proceedings by refusing the services of his counsel. The court concluded that Johnson made a knowing and intelligent waiver of counsel. Johnson, 119 Ill. 2d at 138.
In the instant case, the circuit court substantially complied with Rule 401(a). The circuit court admonished the defendant of his right to counsel, informed him of the nature of the charges against him and explained that the death penalty was the maximum sentence prescribed by law. Where a defendant knows the nature of the charges against him and understands that as a result of those charges he may receive the death penalty, his knowledge and understanding that he may be eligible to receive a lesser sentence pales in comparison. See People v. Stewart (1984), 101 Ill. 2d 470, 486-87 (regarding Rule 402, where defendant knows he may receive the death penalty, trial court’s failure to inform him of lesser sentences does not invalidate admonishments).
As we find that the circuit court substantially complied with Rule 401(a), we must next determine whether the defendant’s waiver of counsel, despite the incorrect admonishment of the minimum sentence, was made knowingly and intelligently. The defendant asserts that if he had known the minimum sentence was natural life imprisonment rather than a 20-year term of imprisonment, he would not have waived counsel. In response, the State argues that the defendant knew the minimum sentence was natural life imprisonment; therefore, he made a knowing and intelligent waiver of counsel. After carefully reviewing the entire record, we find the defendant’s assertion to be untenable.
At the defendant’s arraignment, the circuit court engaged in the following colloquy:
“THE COURT: Murder has, as charged in these indictments, a possible penalty of, first, from 20 to 40 years in the penitentiary.
MR. CHANCEY (State’s Attorney): Your honor, I think the minimum penalty, because he’s been convicted of murder before, is natural life.
THE COURT: I think you may be correct. But I think that the question of the time of the offense and the conviction subsequent may, you know — I haven’t seen the case law on that, I think there’s at least, a legal issue which has to be resolved by a court. I’m not going to intend to resolve it, at this time.
MR. CHANCEY: Okay.
THE COURT: Murder has a possible penalty of from 20 to 40 years in the penitentiary. Again, under certain circumstances, including an age under 13 years, if the facts and circumstances of the offense indicate wanton cruelty, or heinous behavior on the part of the defendant, the possible penalty can be from 40 to 80 years in the penitentiary. Under other circumstances, the possible penalty can be natural life imprisonment. And that means natural life.
The law does provide, in Illinois, that if you have a previous conviction for murder, that natural life must be applied.
In addition thereto, you are charged with the commission of murder while committing a forceable felony. The possible penalty for murder can be the death penalty.
Do you understand that?
MR. COLEMAN: Yes, I do.” (Emphasis added.)
During the closing arguments at the sentencing hearing, the defendant on his own behalf argued:
“Now, we ask the question, what do we do with Alton Coleman? Should he be put to death, or should he spend the rest of his natural life in prison? That’s the question we are concerned with. Two years ago, that is gone. You wouldn’t even heard of Alton Coleman if they left me right in prison where I was at, no, they want a feather in their hat. They done convicted me and sentence me other places, but no, they want a feather in their hat, and I love this opportunity to address you right now, no matter what you come back with. I thank God I am able to address you right now. We asking about should you sentence me to death or should the punishment be life imprisonment. That is the question.” (Emphasis added.)
The record reveals that from his arraignment to the closing arguments at his sentencing hearing, the defendant knew and understood that natural life imprisonment was the minimum sentence prescribed by law.
Equally compelling are the reasons given by the defendant as to why he chose to waive counsel and represent himself. The defendant’s rationale indicates, first, that his decision to waive counsel did not hinge to any degree on the minimum sentence prescribed by law; and, second, his decision was knowing and intelligent.
On June 2, 1986, seven months before his trial, the defendant filed a motion for appointment of special counsel because of an alleged conflict of interest between the public defender and the defendant. In 1977, the public defender represented the defendant’s brother in an unrelated matter. Melius and Pantsios were not the attorneys of record in that matter. The circuit court noted that the 1977 cause did not create a conflict of interest. The defendant reiterated his concern and asked the court to appoint Lonnie Randolph, an Indiana attorney licensed in Illinois, as special counsel. The circuit court was willing to appoint Wayne Flanigan, a local attorney who the court noted was competent and experienced in capital cases, as special counsel, but the court was unwilling to appoint Randolph because it was unfamiliar with, him and was concerned about the distance between his office in Indiana and the court in Lake County, Illinois. The defendant refused and stated that if the court would not appoint Randolph, he would represent himself. The defendant reconsidered and agreed to be represented by Melius and Pantsios.
On July 18, 1986, the defendant expressed his dissatisfaction with Pantsios and accused her of giving him personal gifts. Pantsios explained that she gave the defendant certain items at his request. On October 15, 1986, Pantsios filed a motion to withdraw as counsel because the defendant threatened to file a disciplinary complaint against her. The defendant stated that he did not want Pantsios to withdraw, and he further stated:
“I have not filed any motion in regards to Miss Pantsios giving me gifts or what have you. I think if it was a problem it was self-created long ago.” On October 29, 1986, the defendant again expressed his dissatisfaction with Pantsios. He filed a motion for substitution of counsel alleging a conflict of interest between Pantsios and himself. The circuit court found that there was no conflict of interest, noted that Pantsios was competent and denied the motion. The defendant moved to proceed pro se. The circuit court asked the defendant to consider the consequences of that decision. On November 12, 1986, the defendant again filed a motion for substitution of counsel. The circuit court denied the motion because it was based on the same grounds as his previous motion. On November 19, 1986, the defendant filed a motion to proceed pro se, then decided to withdraw his motion. On December 30, 1986, six days before his trial, the defendant again filed a motion to proceed pro se. The circuit court admonished the defendant and granted his motion.
After the guilt phase of his trial, the defendant requested that counsel be reappointed for his sentencing hearing. Before the circuit court agreed to reappoint counsel, the following colloquy took place:
“THE COURT: So you think that [Pantsios] is competent and you should have her represent you?
THE DEFENDANT: There is no question from the start she is competent.
THE COURT: And you have no questions as to her loyalty towards you or her ability to act?
THE DEFENDANT: At this stage, your honor, my memory is exhausted, I think she is Perry Mason now.”
The circuit court reappointed Melius and Pantsios.
After the first phase of the sentencing hearing, the defendant again filed a motion to proceed pro se. The circuit court admonished the defendant, in part, as follows:
“THE COURT: Well, you have a right to counsel, as you know, I guess I have appointed them, you have elected to proceed pro se, so we have had them stand by, then you decided that you shouldn’t proceed pro se any longer, that you had a headache, if I recall correctly Mrs. Pantsios looked like Perry Mason to you.
THE DEFENDANT: She still is Perry Mason, Your Honor, and she is capable not only of handling this trial but other trials, however, she don’t have the personal knowledge that I have and I can’t be hindered ***.”
The circuit court completed its admonishments to the defendant and granted his motion to proceed pro se.
During the closing arguments at his sentencing hearing, the defendant on his own behalf argued:
“I am very shocked that I have to be accidently brought before the court, representing myself for the reason because I want to be heard. Yes, I don’t want to hide behind no lawyer. Alton Coleman want to be heard, and don’t care if no one like it, I want to be heard, period. Don’t want- to hide behind no lawyer, I don’t want to stick behind a lawyer, who speak for me. Alton Coleman going to speak for himself, and he is going to speak for himself because I have something to say, and if it’s like me or you don’t, it doesn’t has the bearings on what you have to do.”
The foregoing indicates that, first, the defendant wanted the circuit court to appoint Lonnie Randolph as special counsel, and because the court refused to appoint Randolph, he preferred to represent himself; second, although the court and the defendant noted that the public defender who was assigned to the case was able and competent, the defendant preferred to represent himself because he had certain personal knowledge which the public defender did not have; and third, the defendant wanted to speak on his own behalf rather than having the public defender speak for him. The record therefore reflects that the defendant had specific, legitimate reasons for waiving his right to counsel, which demonstrates that the defendant would have waived counsel regardless of the length of the minimum sentence prescribed by law.
After the court imposed the death sentence, the defendant asked that counsel be reappointed for his post-trial hearing. The circuit court reappointed the public defender. As Pantsios was familiar with the proceedings, she represented the defendant. Soon thereafter, the defendant expressed his dissatisfaction with Pantsios. In response, the circuit court made the following finding:
“THE COURT: You have attempted to manipulate the proceedings.
THE DEFENDANT: You can call it what you want, Your Honor.
THE COURT: And I am. And tried to frustrate this proceeding by raising specious objections, withdrawing them, asking for Mrs. Pantsios to be appointed, and then saying you don’t want her.”
The record supports the circuit court’s finding that the defendant used his right to counsel and his right to waive counsel in a manner designed to frustrate and manipulate the proceedings.
Finally, after Pantsios finished preparing the defendant’s motion for a new trial, the defendant filed a motion to proceed pro se at his post-trial hearing. The circuit court admonished the defendant of his rights, informed the defendant that the jury had imposed the death penalty, and granted his motion to proceed pro se. The defendant included the motion for a new trial, prepared by Pantsios, with his own post-trial motions, and argued the post-trial motions on his own behalf. The defendant’s decision to represent himself, even after the jury had imposed the death penalty, stands in stark contrast to his assertion that he would not have waived counsel had he known that natural life imprisonment was the minimum sentence.
We hold that despite its incorrect admonishment of the minimum sentence, the circuit court sufficiently admonished the defendant in accordance with Rule 401(a) (107 Ill. 2d R. 401(a)), and that the defendant made a knowing and intelligent waiver of counsel at the guilt and sentencing phases of his trial. The record reveals that the defendant knew that the minimum sentence was natural life imprisonment, offered legitimate reasons for waiving his right to counsel, and attempted to manipulate the proceedings by repeatedly refusing the services of his counsel.
The defendant next asserts that the circuit court erred in denying his motion to suppress. On the day of the defendant’s arrest, William Keefe, an FBI agent, questioned the defendant until the defendant asserted his right to counsel. Later that day, Marc Hansen, a Waukegan police officer, questioned the defendant, at which time he admitted having known J.W., but denied having known or killed Vernita Wheat. On the day before his trial, the defendant filed a motion to suppress his statements to the FBI, arguing that they were obtained in violation of his fifth amendment right to counsel under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The circuit court granted the defendant’s motion.
The defendant did not move to suppress his statements to Officer Hansen. At trial, the State questioned Officer Hansen about these statements. The defendant objected on “foundational” grounds, and the circuit court overruled the objection. The defendant’s failure to raise this issue in his motion to suppress and to object on the proper grounds at trial resulted in a waiver of this issue through procedural default. (See People v. Gacho (1988), 122 Ill. 2d 221, 239; People v. Holman (1984), 103 Ill. 2d 133, 181-82 (Ryan, C.J., concurring in part and dissenting in part).) Moreover, as the defendant failed to make the circuit court aware of a possible violation of his fifth amendment right to counsel, the circuit court did not err in allowing Officer Hansen to testify. See People v. Garcia (1983), 97 Ill. 2d 58, 74 (trial court’s ruling on motion to suppress will not be disturbed unless it is manifestly erroneous).
Even if we construe the defendant’s “foundational” objection as sufficient to notify the circuit court of a possible violation of his fifth amendment right to counsel, Officer Hansen’s testimony was harmless beyond a reasonable doubt. A reviewing court will not hold that an error is harmless unless the court is satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s convictions. (Chapman v. California (1967), 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827; People v. Knippenberg (1977), 66 Ill. 2d 276, 287-88.) In making this determination, the reviewing court will consider the effect that the unlawfully admitted evidence had on the properly admitted evidence. Fahy v. Connecticut (1963), 375 U.S. 85, 87, 11 L. Ed. 2d 171, 173-74, 84 S. Ct. 229, 231; People v. St. Pierre (1988), 122 Ill. 2d 95, 114.
Officer Hansen testified that the defendant admitted having known J.W.. Although inculpatory, Officer Hansen’s testimony was merely cumulative because three other witnesses — J.W., E.R. and W.P. — also testified that the defendant knew J.W.. In addition, Officer Hansen testified that the defendant denied having known or killed Vernita Wheat. This testimony was exculpatory and consistent with the defendant’s position that he did not kill Vernita Wheat. We are therefore satisfied beyond a reasonable doubt that Officer Hansen’s testimony did not contribute to the defendant’s convictions.
The defendant next asserts that the jury improperly relied on section 9 — 1(b)(7) to establish his eligibility for the death penalty. Section 9 — 1(b)(7) provides that a defendant who has been found guilty of murder may be sentenced to death if:
“the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(7).)
The defendant argues that the section is unconstitutionally vague, or, in the alternative, the section is inapplicable to him because he contends the jury found that he did not personally kill Vernita Wheat.
The defendant first argues that section 9 — 1(b)(7) is unconstitutionally vague under the eighth amendment (U.S. Const., amend. VIII). The Supreme Court in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, held that an aggravating factor in the Oklahoma death penalty statute was unconstitutionally vague, as applied to that defendant, because the language — “especially heinous, atrocious, or cruel” — failed to guide or limit the discretion of the sentencing body. (Maynard, 486 U.S. at 364, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.) The defendant argues that section 9— 1(b)(7) suffers from the same constitutional infirmity as the statute in Maynard. In response, the State argues that although the section contains language similar to the statute in Maynard, it is more specific in that it requires the murder victim to be “under 12 years of age,” and the brutal or heinous behavior causing the death must be “indicative of wanton cruelty.” (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(7).) The State therefore argues that the section sufficiently guides or limits the discretion of the sentencing body.
The defendant argues that even if section 9 — 1(b)(7) is not unconstitutionally vague, the section is inapplicable to him because the jury found that he did not personally murder Vernita Wheat. At the first phase of the sentencing hearing, the State argued that there were three statutory aggravating factors rendering the defendant eligible for the death penalty: the defendant had previously been convicted of killing two or more individuals (Ill. Rev. Stat. 1983, ch. 38, par: 9 — 1(b)(3)); the murder victim was under 12 years of age and her death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1983, ch. 38, par. 9— 1(b)(7)); and the murder victim was killed by the defendant in the course of a felony; in this case, aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6)). The jury found that the defendant was eligible for the death penalty under sections 9 — 1(b)(3) and (b)(7), but not under (b)(6). The defendant therefore contends that the jury concluded that either an accomplice or another individual murdered Vernita Wheat, but the defendant did not. The defendant further contends that the legislature did not intend for section 9 — l(bX7) to apply to a defendant who did not personally commit the murder. In response, the State argues that although the jury found the defendant ineligible for the death penalty under section 9 — 1(b)(6), the jury did find that the defendant personally murdered Vernita Wheat because it was not instructed on accomplice liability during the guilt phase of the trial. In the alternative, the State argues that even if the jury concluded that the defendant did not personally commit the murder, the legislature did not limit the applicability of section 9 — 1(b)(7), as it did with section 9— l(bX6), to those who personally commit a murder.
As we find that the defendant was independently eligible for the death penalty under section 9 — 1(b)(3) (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(3)), we need not decide whether section 9 — 1(b)(7) is. unconstitutionally vague or inapplicable to the defendant. See Zant v. Stephens (1983), 462 U.S. 862, 880-90, 77 L. Ed. 2d 235, 252-58, 103 S. Ct. 2733, 2744-50; Barclay v. Florida (1983), 463 U.S. 939, 956-58, 77 L. Ed. 2d 1134, 1148-49, 103 S. Ct. 3418, 3428-29 (plurality opinion); Stringer v. Jackson (5th Cir. 1988), 862 F.2d 1108, 1113-15.
In Zant, a jury found a Georgia defendant guilty of murder, and after finding that there were three statutory aggravating factors in existence, imposed the death penalty. The Georgia Supreme Court subsequently held that one of the three aggravating factors was unconstitutionally vague. The United States Supreme Court granted certiorari (454 U.S. 814, 70 L. Ed. 2d 82, 102 S. Ct. 90) to decide whether the death penalty must be vacated because one of the three aggravating factors which the jury relied upon was unconstitutional. Zant, 462 U.S. at 864, 77 L. Ed. 2d at 241, 103 S. Ct. at 2736.
The Supreme Court noted that the Georgia death penalty statute does not place special emphasis on any aggravating factor and does not accord any added significance to multiple aggravating factors as opposed to a single such factor. Furthermore, the finding of an aggravating factor serves the purpose of narrowing the class of persons convicted of murder who are eligible for the death penalty; the finding of an aggravating factor does not guide the sentencing body in the exercise of its discretion. Moreover, the statute provides for meaningful appellate review of every death sentence to determine if the sentence was arbitrary or disproportionate. (462 U.S. at 874, 77 L. Ed. 2d at 248, 103 S. Ct. at 2741.) The Supreme Court held that as there were two valid aggravating factors which served to narrow the class of persons eligible for the death penalty, and as the State supreme court provided meaningful review of the sentence, the one invalid aggravating factor did not render the death sentence invalid. 462 U.S. at 879-80, 77 L. Ed. 2d at 251-52, 103 S. Ct. at 2743-44.
In Illinois, during the first phase of the sentencing hearing, the jury determines whether a defendant is eligible for the death penalty. A defendant who has been found guilty of murder is eligible if: (1) he has attained the age of 18; and (2) the jury has found the existence of at least one aggravating factor. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b).) Like the Georgia statute, the Illinois statute does not place special emphasis on any aggravating factor and does not accord any added significance to multiple aggravating factors as opposed to a single such factor. The finding of an aggravating factor serves the purpose of narrowing the class of persons convicted of murder who are eligible for the death penalty; the finding of an aggravating factor does not guide the jury in the exercise of its discretion. If the jury determines that a defendant is eligible for the death penalty, the jury then considers, during the second phase of the sentencing hearing, any aggravating and mitigating factors which are relevant to the imposition of the death penalty (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(c)), and determines whether there are mitigating factors sufficient to preclude the imposition of the death penalty (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(g), (h)). Finally, this court provides meaningful appellate review of every death sentence. Ill. Rev. Stat. 1983, ch. 38, par. 9 — l(i).
In the instant case, during the first phase of the sentencing hearing, the jury found the existence of two aggravating factors: sections 9 — 1(b)(3) and (b)(7) (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(b)(3), (b)(7)). Therefore, even if we were to assume that section 9 — 1(b)(7) was unconstitutional or inapplicable to the defendant — and we do not make any such finding on either question — the defendant was still eligible for the death penalty under section 9 — 1(b)(3). As noted above, the Illinois statute does not place special emphasis on any aggravating factor and does not accord any added significance to multiple aggravating factors as opposed to a single such factor. Therefore, the jury’s reliance on section 9 — 1(b)(7), even if such reliance was improper, did not affect its finding that the defendant was eligible for the death penalty. During the second phase of the sentencing hearing, the jury was free to consider any relevant and reliable evidence in aggravation and mitigation, including the manner in which the defendant murdered his victim. People v. Emerson (1987), 122 Ill. 2d 411, 445; People v. Owens (1984), 102 Ill. 2d 88, 113.
People v. Brownell (1980), 79 Ill. 2d 508, and People v. Adams (1985), 109 Ill. 2d 102, are consistent. In Brownell, the trial judge found the existence of two statutory aggravating factors rendering Brownell eligible for the death penalty: (1) the victim was killed in the course of a felony (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(6)); and (2) the victim was an eyewitness against Brownell (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(7)). After the second phase of the sentencing hearing, the trial judge sentenced Brownell to death. On appeal, this court held that Brownell was eligible for the death penalty under the first factor, but not under the second. The court reasoned that any murder victim is potentially an eyewitness against the person who commits the murder; therefore, the legislature intended to limit this section “to include situations where, during an investigation or prosecution of a separate offense which has previously taken place, a witness is killed in an attempt to stymie the investigation or prosecution.” (Brownell, 79 Ill. 2d at 526.) The court remanded the cause for resentencing because the trial judge, during the second phase of the sentencing hearing, considered an aggravating factor which was not warranted by the evidence. Brownell, 79 Ill. 2d at 535-36.
In Adams, the prosecutor argued during the first and second phases of the sentencing hearing that Adams qualified for the death penalty, in part, because the victim was an eyewitness to the crime. This argument was erroneous. (See Brownell, 79 Ill. 2d at 535-36.) The court remanded the cause for resentencing because the jury considered an aggravating factor which was not warranted by the evidence. Adams, 109 Ill. 2d at 128.
In Brownell and Adams, the sentencing body considered during the second phase of the sentencing hearing an aggravating factor which was not relevant to the imposition of the death penalty. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(c) (sentencing body shall consider any aggravating and mitigating factor relevant to the imposition of the death penalty).) In the instant case, even if the jury improperly relied on section 9 — 1(b)(7) to establish the defendant’s eligibility for the death penalty, the jury was still free to consider, during the second phase of the sentencing hearing, the manner in which he killed nine-year-old Vernita Wheat.
The defendant next asserts that he was denied a fair sentencing hearing because the prosecutor, during closing arguments, characterized him as “an animal, searching out his prey for money and pure pleasure in murdering.” The defendant failed to object to this statement; therefore, he waived this issue through procedural default. (People v. Gacho (1988), 122 Ill. 2d 221, 239; People v. Holman (1984), 103 Ill. 2d 133, 181-82 (Ryan, C.J., concurring in part and dissenting in part).) Even if the defendant had preserved this issue for review, the remark, although improper, would not rise to the level of reversible error. It is improper to characterize a defendant as an “animal,” but we will not reverse unless the characterization substantially prejudiced the accused. (People v. Spreitzer (1988), 123 Ill. 2d 1, 39; People v. Johnson (1987), 119 Ill. 2d 119, 139-40.) In light of the overwhelming evidence introduced at the guilt and sentencing phases of the trial, we do not find that this isolated remark substantially prejudiced the defendant.
The defendant next asserts that he was denied a fair sentencing hearing because the jury was not instructed that if it did not impose the death penalty, the court would sentence him to mandatory natural life imprisonment. This court recently held:
“An instruction in the case of multiple murders should state that if the jury finds mitigating factors sufficient to preclude imposition of the death penalty, the defendant will be sentenced to natural life imprisonment, and no person serving a term of natural life imprisonment can be paroled or released, except through executive clemency.” (People v. Gacho (1988), 122 Ill. 2d 221, 262.)
The new rule announced in Gacho was held to be prospective only. (Gacho, 122 Ill. 2d at 263; People v. Spreitzer (1988), 123 Ill. 2d 1, 43-44.) At the defendant’s sentencing hearing, which took place before our decision in Gacho, the circuit court properly instructed the jury in accordance with existing law. See People v. Stewart (1984), 105 Ill. 2d 22, 71; People v. Albanese (1984), 102 Ill. 2d 54, 81.
The defendant argues that in light of Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, the new rule announced in Gacho must be applied retroactively. Griffith held that decisions announcing new constitutional rules of criminal procedure are “to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” 479 U.S. at 328, 93 L. Ed. 2d at 661, 107 S. Ct. at 716.
The defendant’s argument is without merit. The right to a jury instruction on the alternative mandatory sentence of natural life imprisonment is a statutory, not a constitutional, right. (See King v. Lynaugh (5th Cir. 1988), 850 F.2d 1055; O’Bryan v. Estelle (5th Cir. 1983), 714 F.2d 365.) The new rule announced in Gacho is rooted in section 5 — 8 — 1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(1)(c); Gacho, 122 Ill. 2d at 261), and its purpose is to clarify to the jury the statutory requirement that an individual convicted of multiple murders must be sentenced to natural life imprisonment if not sentenced to death. As Griffith is applicable only if the new rule is of constitutional dimension (Griffith, 479 U.S. at 328, 93 L. Ed. 2d at 661, 107 S. Ct. at 716; People v. Erickson (1987), 117 Ill. 2d 271, 289), and as the new rule announced in Gacho is only of statutory dimension, Griffith is not controlling.
Lastly, the defendant challenges the constitutionality of the Illinois death penalty statute. Each of his claims, however, has previously been resolved against him. The State is not required to prove the absence of mitigating factors beyond a reasonable doubt (People v. Johnson (1987), 119 Ill. 2d 119, 151; People v. Kubat (1983), 94 Ill. 2d 437, 504), and the death penalty statute does not place an impermissible burden of proof on the defendant to establish mitigating factors (People v. Orange (1988), 121 Ill. 2d 364, 390; People v. Ramirez (1983), 98 Ill. 2d 439, 468-69). Moreover, the death penalty statute does not lack adequate safeguards to prevent the arbitrary or capricious imposition of the death penalty. (People v. Whitehead (1987), 116 Ill. 2d 425, 465; People v. Albanese (1984), 104 Ill. 2d 504, 540-42.) Finally, the entire capital sentencing scheme, in combination, does not render the process arbitrary or capricious. People v. Jimerson (1988), 127 Ill. 2d 12, 56.
We are aware of the opinion of the United States District Court for the Central District of Illinois, filed April 29, 1989, in the case of the United States ex rel. Silagy v. Peters, No. 88 — 2390. In that case the court held the Illinois death penalty statute (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1) unconstitutional. In passing on Federal constitutional questions, State courts and lower Federal courts have the same responsibility and occupy the same position. Until the Supreme Court of the United States has spoken, State courts are not precluded from exercising their own judgments on Federal constitutional questions. Because lower Federal courts exercise no appellate jurisdiction over State courts, decisions of lower Federal courts are not conclusive on State courts, except insofar as the decision of the lower Federal court may become the law of the case. United States ex rel. Lawrence v. Woods (7th Cir. 1970), 432 F.2d 1071; see also City of Chicago v. Groffman (1977), 68 Ill. 2d 112; People v. Stansberry (1971), 47 Ill. 2d 541.
For the reasons set forth above, we affirm the defendant’s convictions and sentence of death. We hereby direct the clerk of this court to enter an order setting Wednesday, November 15, 1989, as the date on which the sentence of death entered by the circuit court of Lake County shall be carried out. The defendant shall be executed by lethal injection in the manner provided by section 119 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 119-5). The clerk of this court shall send a copy of this mandate to the Director of Corrections, the warden of Stateville Correctional Center, and the warden of the institution where the defendant is confined.
Affirmed.
Alton COLEMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 45S00-8610-CR-937.
Supreme Court of Indiana.
Aug. 24, 1990.
Rehearing Denied Oct. 23, 1990.
James F. Stanton, Appellate Div., Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
[OPINION BY SHEPARD, Chief Justice. type=majority]
SHEPARD, Chief Justice.
Appellant Alton Coleman was found guilty by a jury of murder, a felony, Ind. Code § 35-42-1-1(1) (Burns 1985 Repl.), attempted murder, a class A felony, Ind.Code §§ 35-41-5-1, 85-42-1-1 (Burns 1985 Repl.), and child molesting, a class A felony, Ind.Code § 85-42-4-8(a) (Burns 1985 Repl.). The jury also recommended the death penalty. Judge Richard Maroc entered lengthy findings and sentenced Coleman to death.
In June 1984, Coleman and his companion Deborah Brown approached two young girls in Gary. The girls were ten-year-old AH. and her seven-year-old niece, Tamika Turk. They enticed the girls into a wooded area with a friendly offer of clothing. Once there, Coleman told the girls that he was going to play a game. He then took off Tamika Turk's pink shirt, cut it into shreds with a pocket knife, and tied both girls' hands, mouths and legs.
Tamika began erying. Coleman responded by stomping viciously on her face, chest and stomach with his foot. Afterward, Coleman and Brown carried Tamika away. AH. testified that Tamika was not breathing when Coleman and Brown carried her away. Tamika's body was later discovered with a piece of bed clothing tied around her neck.
Coleman next forced AH. to perform oral sex on him and on Brown. While A.H. was performing oral sex on Brown, Coleman raped AH. Finally, Coleman and Brown simultaneously strangled A.H. with their belts until she passed out. Incredibly, AH. regained consciousness and walked out of the wooded area. A young woman and her mother noticed A.H., took her in, and eventually called an ambulance. At the hospital, doctors discovered cuts so deep in A.H.'s vaginal area that her intestines were protruding into her vagina.
Coleman appeals, raising four issues:
I. Whether the trial court committed fundamental error by permitting the victim's grandmother to testify at the sentencing hearing, violating the eighth amendment as interpreted in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).
II. Whether prosecutorial misconduct denied Coleman his right to due process and a fair trial.
III. Whether the trial court erred by permitting A.H. to identify Coleman at trial after allegedly improper pre-trial photographic displays and identification procedures.
IV. Whether Indiana's death sentence statute violates the eighth and fourteenth amendments because it gives prosecutors the arbitrary power to choose against whom to seek the death penalty.
I. Victim Impact Evidence
Coleman argues that the State presented evidence of the impact of his crimes on the victims and testimony by a family member concerning the propriety of the death penalty, contrary to the dictates of the eighth amendment as interpreted in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, - U.S. -, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989).
M.H., mother of A.H. and grandmother of Tamika, testified for the State at Coleman's sentencing hearing before Judge Maroc. The jury neither heard nor considered her testimony. M.H. told the court that A.H. had become withdrawn and suffered nightmares. She testified that she herself had attempted suicide and offered her opinion that Coleman should die for murdering Tamika.
We begin by considering the applicability of Booth and Gathers to Coleman's case, which was tried before either of those two decisions was issued. The Florida Supreme Court has recently held that the stringent evidentiary pronouncements in Booth and Gathers represented such a significant change in the constitutional rules of capital sentencing that fairness requires retroactive application of the rules contained in those two opinions to cases on direct appeal in which an adequate objection was lodged at trial. Parker v. Dugger, 550 So.2d 459 (1989); Jackson v. Dugger, 547 So.2d 1197 (1989). We concur in this assessment and hold that Booth and Gathers apply to the direct appeal of a trial occurring before those cases were decided so long as the appellant has preserved a victim impact issue by objecting at trial.
The Attorney General argues that Coleman has waived the issue by failing to object a trial The record reveals that Coleman objected on relevance grounds to the most compelling portion of M.H.'s testimony, her own attempt at suicide upon hearing A.H.'s story. We conclude that Coleman has preserved his claim under Booth and Gathers.
As for the merits of Coleman's claim, we note that the victim impact statement condemned in Booth contained two sorts of information. First, it portrayed the personal characteristics of the victims and described the impact of the crime on members of the deceased couple's family. See-ond, it offered the family members' opinions about the seriousness of the crime and their views on the appropriate penalty. Writing for a majority of five, Justice Powell declared that only so much of this information as might be relevant to an offender's "personal responsibility and moral guilt" may be used in making a capital decision. Booth, 482 U.S. at 502, 107 S.Ct. at 2533. Justice Powell asserted that murderers frequently do not know their victims and rarely select a victim based on whether the murder will have an impact on anyone other than the person murdered. While acknowledging that a murderer who acts with a high degree of knowledge of the likely consequences of his acts might be morally more culpable, Justice Powell concluded that Maryland's statute providing for victim impact statements generated documentary evidence which would frequently be unknown to the murderer and irrelevant to the decision to kill. As for the victim impact statement's sections in which the family members characterized the butchery of the crime and called for execution of the perpetrator, Justice Powell declared that its introduction "can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." Id., at 508, 107 S.Ct. at 2536.
In South Carolina v. Gathers, the Court extended this view of relevance from the victim impact statement to testimentary evidence. Justice Brennan declared that a prayer card and a voter registration card carried in the victim's wallet and strewn about in the dark as the murderer searched for money were apparently unknown to the murderer (as the victim was a stranger) and thus irrelevant to the sentencing decision to be made by the South Carolina jury. Gathers, 104 L.Ed.2d at 876.
Under this test of relevance, some of M.H.'s testimony was proper under the eighth amendment. M.H. testified that A.H. had become somewhat withdrawn and suffered nightmares as the result of watching her niece be stomped to death and being sexually assaulted herself. We view these as straightforward and readily anticipated results of a vicious attack on two young girls. They are hardly "factors about which the defendant was unaware." Id. Admitting this testimony did not violate the eighth amendment.
M.H.'s statement about her own attempt at suicide and her assertion that Coleman should be executed, by contrast, were irrelevant under the definition announced in Booth and Gathers. Had this irrelevant and highly personal testimony been submitted to a jury which would make the final decision concerning execution or a term of years, it could well be argued that its admission would "create the risk that a death sentence will be based on considerations that are 'constitutionally impermissible or totally irrelevant to the sentencing process'" Booth, 482 U.S. at 502, 107 S.Ct. at 2533, quoting Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235, 255 (1983).
Of course, M.H.'s testimony on these two points was not heard by a sentencing jury. Instead, it was presented to the sentencing court. We generally presume that in a proceeding tried to the bench a court renders its decisions solely on the basis of relevant and probative evidence. Our colleagues in Ohio have reached the same conclusion in assessing the impact of Booth on sentencing by judges. State v. Post, 32 Ohio St.3d 380, 513 N.E.2d 754 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023 (1988) (absent indication that sentencing judges relied on Booth information, death sentence will be upheld).
Indiana's requirement of written findings by the sentencing judge serves us well under these circumstances. As he has in the past, Judge Maroc has issued a particularly thoughtful and well written set of findings and conclusions to explain why he chose to impose the death penalty. There is no indication in this twelve-page memorial that the trial court relied on M.H.'s testimony. Rather, Judge Maroc focused on the overwhelming evidence demonstrating commission of the crime and Coleman's moral blameworthiness for it. Admitting M.H.'s testimony under these cireum-stances does not violate the eighth amendment.
II. Prosecutorial Misconduct
Coleman argues that prosecutorial misconduct by Thomas Vanes, the lead prosecutor in this case, denied Coleman a fair trial and his right to due process as guaranteed by art. I, §§ 12, 18, and 14 of the Indiana Constitution and the fifth, sixth and fourteenth amendments to the U.S. Constitution. He asserts that this misconduct warrants reversal of his conviction and a new trial. After a day of the defense's presentation of evidence, Vanes wrote a note and posted it in the elevator used to take Coleman from the courtroom to his jail cell. The note said:
Pissy
You got
the balls
(ball) to testify 77?
The note referred to Coleman's childhood nickname, which he disliked, and that Coleman had only one testicle. The discovery of this note caused a consternation. The court allowed Coleman some time to decide whether to testify. Vanes apologized to the court and withdrew from the case. The trial judge held him in contempt; the record does not reveal the imposition of any sanction.
This note was far outside the boundaries of reasonable conduct for a prosecutor, to say the least. The trial court properly held Vanes in contempt, but this is not the sort of violation of the Code of Professional Responsibility for which a finding alone is a sufficient sanction. We direct the trial court to enter an appropriate sanction on its finding of contempt if it has not already done so.
Coleman asserts that this note so upset him that he was unable to decide whether to testify. He claims Vanes' actions were so egregious that they offend the principles of justice rooted in our traditions and conscience, citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Coleman also cites Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843, for the proposition that Vanes' note placed him in "grave peril" therefore entitling him to a reversal and a new trial.
In the wake of Vanes' misconduct and Coleman's motion for a mistrial, the trial court conducted an extensive hearing. Judge Maroc appointed two psychiatrists to interview Coleman about the incident and report about its effect on him. They testified that the note had little or no effect Coleman's capacity to participate in his trial and make decisions concerning it. The court also heard testimony from the two officers who were with Coleman when he saw the note. One testified that Coleman seemed shaken up by it and somewhat paranoid thereafter. By contrast, the other officer testified that Coleman laughed when he saw the note and did not seem upset.
The activities described above consumed some seven hours. When they were concluded, the trial court denied Coleman's motion for a mistrial. Asked whether he would made a finding on whether the note had any impact on Coleman's decision about taking the stand, Judge Maroc said: "I will make a finding on that. I don't think it has an effect." He explained further: "I feel that the decision as to whether or not to testify is as difficult for the defendant today as it was yesterday but that this has not had an effect on that of constitutional proportions." - Record at 2142. The court recessed until the next day.
Coleman has correctly identified the precedent applicable to a motion for mistrial based on prosecutorial misconduct. A mistrial is appropriate if the prosecutor has violated the norms of professional conduct and placed the defendant in a position of grave peril. Maldonado, 265 Ind. 492, 355 N.E.2d 843. The gravity of the peril is measured by its likely effect on the jury. Swope v. State (1975), 263 Ind. 148, 325 N.E.2d 193.
The jury never knew about Vanes' note. The trial court carefully examined the impact of the note and concluded that it had no effect. Our review of the record persuades us that this conclusion is correct. We can understand the possibility that Coleman might have suffered some distress over the message contained in the note. The psychiatrists and the trial judge concluded that the effect on Coleman's ability to decide whether to testify was minimal or nonexistent. That being so, Coleman's rights have not been violated in any substantial way. Moreover, an appropriate penalty on Vanes' for his contempt will be a greater deterrent to others than a reversal and a second trial.
The trial court properly denied the motion for mistrial.
III. Identification Procedures
Coleman argues that the trial court erred when it allowed A.H. to identify him at trial as the perpetrator. He bases his argument on what he calls suggestive pretrial identification procedures.
The appropriate standard for admissibility is whether under the totality of the circumstances the identification in court was reliable even though the pre-trial procedure was suggestive. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Before the identification is inadmissible as a matter of law, the court must find that the procedure was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification. Id. at 197, 93 S.Ct. at 381, 34 L.Ed.2d at 410.
Coleman alleges that the suggestive procedures began on June 21, 1984, when A.H. was in the hospital recovering from the attack. First of all, on the morning of June 21 an F.B.1. agent showed A.H. six photographs. When she came to the third picture, one of Coleman, she said: "'That's him." She added that the attacker was "darker." That comment bolstered A.H.'s credibility; the F.B.I. agent testified that indeed Coleman's personal appearance is darker than the photograph depicted. After A.H. identified the third photograph as that of her attacker, she tried to give the photos back to the agent. The agent asked her to keep looking through the entire array, and she did. Second, on the afternoon of the same day a reporter for the Gary Post-Tribune showed A.H. a single photograph of Coleman. AH. said the photo was not of the attacker. Third, later in the afternoon a Gary police officer showed A.H. 24 photographs, including one of Coleman. After an initial review, A.H. did not identify any of the photos. The officer then encouraged A.H. to review the photos once more. She did and identified Coleman.
On June 28, A.H. again identified Coleman after reviewing photos at the Gary police station. Finally, she identified Coleman in a lineup in Chicago and at trial.
Everyone involved in the events of June 21 testified that it was a coincidence that AH. was shown so many photographs on that day. The actions were apparently uncoordinated. Coleman does not argue that any of these arrays were performed through suggestive techniques such as prompting. - It is true that the news reporter, obviously not a state actor, showed AH. a single photograph. Curiously, A.H. said that the photograph, though similar to the others of Coleman, was not of the attacker.
Other events buttress A.H.'s identification. On June 19, 1984, A.H. was shown a photo array that did not include Coleman, and she did not make an identification. Again on June 20, A.H. was shown a photo array that did not include Coleman, and onee again she did not make an identification. These displays, along with the display by the F.B.I. agent, strongly indicate that A.H.'s pre-trial identification was not the product of improperly suggestive procedures.
Coleman's argument about the propriety of allowing A.H. to identify him in court also relies on considerations such as: 1) AH.'s uncertainty in her initial description of the attacker to police, 2) her young age, and 3) her failure to wear her eyeglasses on the day of the attack. Her initial description was somewhat uncertain. AH. is only ten years old but the trial court found her competent to testify. She was not wearing her eyeglasses during the attack, but the glasses were prescribed to correct nearsightedness, an impairment of vision at a distance. AH. obviously observed her attacker at close range.
After reviewing the recorded testimony on this issue and Coleman's legal arguments about the pre-trial procedure, we conclude that the trial court properly admitted A.H.'s testimony identifying Coleman.
IV. Death Penalty Selection
Coleman argues that Indiana's death penalty statute is unconstitutional under the eighth amendment because it grants the prosecuting attorney the power to select arbitrarily and capriciously which defendants against whom to seek the death penalty. He argues that "[in Indiana the only way that death can be an available sentencing alternative is for the prosecution to specifically request it in the indictment or information." For legal authority, Coleman cites a single federal district court opinion, U.S. ex rel. Silagy v. Peters, 713 F.Supp. 1246 (C.D.Ill.1989). That district court's holding on this issue has been reversed. Silagy v. Peters, 905 F.2d 986 (7th Cir.1990).
We have resolved this issue against Coleman's position. Fleenor v. State (1987), Ind., 514 N.E.2d 80, cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988).
V. Appropriateness of Sentence
This Court reviews the imposition of each death sentence to determine whether the penalty is appropriate to the offender and his crime. While our review is not de novo in the sense that we are not in a position to assess the testimony in the same way a trial court does, this Court's determination is an independent one in that we must be satisfied ourselves that the proofs required by the statute are adequate and that the weight of the aggravators and mitigators justifies the penalty of death.
The State has proven the two ag-gravators charged. First, that Alton Coleman was earlier convicted of murders in Ohio is a matter of record in that state and in this case. Second, the evidence demonstrated that Coleman enticed two young girls into a woods, bound them, stomped and strangled one of them to death, and repeatedly molested the other-all essentially as part of one episode.
We are unable to find any matters pointing toward mitigation. The psychiatric evidence was that Coleman is mentally competent; it portrays his as a manipulative sociopath of above average intelligence. He neither played a minor part in these crimes, nor acted under the domination of another, nor with the consent of the victims. In short, there is nothing apparent to detract from his culpability. Unable to see any mitigation, we are satisfied that the aggravating cireumstances justify the imposition of the death penalty.
We affirm the trial court's judgment in all matters relating to Coleman's conviction and sentence of death. We direct the trial court to enter a sentence for Vanes' contemptuous actions adequate to deter such conduct.
GIVAN and DICKSON, JJ., concur.
PIVARNIK, J., concurs in result with opinion.
DeBRULER, J., concurs in result and dissents with opinion.
[OPINION BY PIVARNIK, Justice, type=concurrence]
PIVARNIK, Justice,
concurring in result.
I concur with the majority on the merits of the issues presented for our review. However, I question the propriety of this Court directing the trial court to make a judgment as to sanctions for contempt. It peculiarly is within the jurisdiction of the trial judge to make a judgment as to what sanctions might be appropriate. If his decision might be thought to violate the law or to be an abuse of his discretion, the question can be presented to this Court in a proper appeal procedure.
Inasmuch as the issue is not before us and is before a capable and experienced trial judge, I see no- grounds for this Court assuming the role of trial judge and mandating a particular ruling.
[OPINION BY DeBRULER, Justice, type=concurring-in-part-and-dissenting-in-part]
DeBRULER, Justice,
concurring in result and dissenting.
I vote to affirm these convictions, set aside the sentence of death, and order new jury and judge death sentencing hearings or the imposition of a term of years for the murder conviction. The judge's sentencing order should be set aside because there is need for a specific clarification with regard to the question of whether or not he did consider the highly irrelevant and prejudicial testimony of M.H. when making the death decision. I cannot agree with the majority opinion wherein it concludes that the defendant in an Indiana capital case is not prejudiced when a judge receives such testimony at a sentencing hearing, and the judge then sentences the defendant to death, making no mention of having considered such irrelevant and highly prejudicial matter. When received by a sentencing jury, such matter creates an unacceptable risk that the jury will impose the death penalty on an arbitrary and capricious basis. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). When an appellate court is satisfied that such matter has been received by a sentencing judge and is not satisfied that it played no role in the decision to give the death penalty, I would adopt the procedure of remanding the case to the trial judge to amend his written statements supporting the consideration of aggravating and mitigating circumstances to clarify the picture.
A remand is particularly appropriate here because the judge expressly ruled at the sentencing hearing that such testimony of M.H. was not irrelevant. In the aftermath of that ruling, the absence of any mention in the judge's written findings of M.H.'s extreme despondency does not provide a satisfactory indication that he did not consider it.
I also find that I am unable to agree with the majority of the Court wherein it concludes that the Eighth Amendment protection against the death sentencing use of irrelevant and prejudicial victim impact information pronounced by the United States Supreme Court in Booth should in some manner be deemed waived for the purposes of review because of the lack of a contemporaneous objection by defense counsel to the admission of such information. Because of the special character of the death penalty, the unique problems in implementing it, and the great need to ensure its integrity, I would not employ the waiver for failure to object at all in resolving constitutional claims against the death penalty made in the first direct appeal or in any motion to correct errors immediately preceding it. Such a finding of waiver in non-death penalty areas is seldom the final resolution of the appellate claim and is most often the prologue to a low-serutiny, truncated form of review of the appellate claim on the merits. That level of serutiny I find intolerable when reviewing the propriety of the death penalty. If a finding of waiver is not followed by such a lesser review process, but a full-blown one instead, then I see no purpose in maintaining the waiver, as it would be no more than pretense.
The jury's recommendation of death cannot stand here because one of the two aggravating circumstances upon which it is based is non-existent. Despite the fact that appellant does not complain, the defect is apparent. The second aggravating circumstance is based upon 1.0. 85-50-2-9(b)(7), which provides:
The defendant has been convicted of another murder.
Beyond the legitimate questions of what constitutes a conviction and what constitutes a murder for the purposes of the statute, is the question most pertinent here, namely, the question of when the conviction constituting the aggravating circumstance must occur in relation to the charged murder. The dominant character of all of the aggravating circumstances set forth in the statute is their close proximity in time and space to the criminal conduct constituting the charged murder. They include the state of mind of the defendant at the time of the murder, the means by which the murder is committed, the cireum-stances and condition of the murder victim, and the circumstances and conditions of the defendant at the time of the crime. The aggravating circumstance in I.C. 85-50-2-9(b)(7) falls in the last-mentioned category. It identifies a condition or quality of the defendant at the time of the crime, namely, that at the time of the decision to kill, the defendant had already experienced detection and arrest, had been subjected to the judicial processes including conviction for murder, and was undeterred by such experiences. It is apparent that appellant Coleman does not fall in this class of persons, as at the time he committed this murder, he had not yet been convicted in Ohio of the two murders alleged. Upon this error, apparent on the record, I would include in the remand order to Judge Maroc that the sentence of death be ordered, if at all, solely upon the basis of the first aggravating circumstance as identified in the majority opinion.
The State sought death on two grounds: murder while committing or attempting child molesting, Ind.Code § 35-50-2-9(b)(1), and after having been convicted of another murder, Ind. Code § 35-5-2-9(b)(7). In 1985, Coleman was convicted of two counts of murder and sentenced to death in Hamilton County, Ohio, under cause numbers B-843548 and B-§43559.
Coleman only mentions the Indiana Constitution in passing. For lack of any substantive argument, he waives his state constitutional argument. St. John v. State (1988), Ind., 523 N.E.2d 1353.
We note that Coleman reaches a different conclusion about the psychiatrists' testimony. We agree that their testimony is at times contradictory under cross-examination, but after reviewing all of the lengthy statements, we believe this is a fair reading of their conclusions.
(No. 75902.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ALTON COLEMAN, Appellant.
Opinion filed November 2, 1995.
Rehearing denied January 29, 1996.
Mary Elizabeth Kopko, of Chicago, and Robert Davidow, of Arlington, Virginia, for appellant.
Roland W. Burris, Attorney General, of Springfield, and Michael J. Waller, State’s Attorney, of Waukegan (Rosalyn B. Kaplan, Solicitor General, and Arleen C. Anderson and Steven J. Zick, Assistant Attorneys General, of Chicago, and Matthew Chancey and Joy C. Silzer, Assistant State’s Attorneys, of counsel), for the People.
[OPINION BY JUSTICE NICKELS type=majority]
JUSTICE NICKELS
delivered the opinion of the court:
Following a jury trial in the circuit court of Lake County, defendant, Alton Coleman, was found guilty of aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 10—2) and murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1) in connection with the abduction and death of nine-year-old Vernita Wheat. The jury found defendant eligible for the. death penalty (Ill. Rev. Stat. 1983, ch. 38, pars. 9—1(b)(3), (b)(7)) and found that there were no mitigating circumstances sufficient to preclude imposition of the death, penalty. The trial court sentenced defendant to death and to a 15-year term of imprisonment for aggravated kidnapping. On direct appeal to this court, defendant’s convictions and sentence were affirmed. (People v. Coleman (1989), 129 Ill. 2d 321, cert, denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 802, 110 S. Ct. 3294.) Defendant subsequently filed a petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.) in the circuit court of Lake County. The circuit court dismissed the majority of the claims in defendant’s petition without an evidentiary hearing. Following an evidentiary hearing, the circuit court denied relief on the remaining claims. Defendant appeals directly to this court pursuant to Supreme Court Rule 651 (145 Ill. 2d R. 651). For the reasons set forth below, we affirm.
BACKGROUND
The factual background of the trial and sentencing is set forth in this court’s opinion in defendant’s direct appeal (People v. Coleman (1989), 129 Ill. 2d 321), and only a relatively brief summary is necessary here. We note that although defendant was initially represented by Lake County Public Defender Michael Melius and Assistant Public Defender Joan Pantsios, six days before trial defendant requested to waive the right to counsel and act as his own attorney. The trial court granted defendant’s request, and appointed attorneys Melius and Pantsios to act as advisors to defendant during trial.
The following evidence was presented at trial. On June 19, 1984, the body of the victim, Vernita Wheat, was discovered in a bathroom in an abandoned apartment building in Waukegan. Her hands were bound, and a cable was wrapped around her chest and neck. Dr. Larry Blum performed an autopsy and determined that the cause of death was ligature strangulation and that the victim had died about three weeks before the discovery of the body. A forensic entomologist studied the development of fly larvae on the body and concluded that the body had probably been placed in the building on May 29 or May 30. Two fingerprints were found side by side on the lower portion of the door to the bathroom where the body was found. One of the fingerprints matched defendant’s, and the other was unidentified.
J.W., the victim’s mother, testified that at the time of the offense she lived in Kenosha, Wisconsin, with her children, Vernita and seven-year-old B.. J.W. met defendant in late April or early May 1984, and knew him by the name Robert Knight. Defendant had told J.W. that he lived in her neighborhood in Kenosha, although in actuality he lived in Waukegan.. He also falsely claimed that he was employed by American Motors. J.W. last saw Vernita alive on May 29, 1984. That evening, defendant stated that he wanted to give J.W. a stereo as a gift. At about 10:15 p.m., with J.W.’s permission, Vernita accompanied defendant to pick up the stereo at defendant’s apartment. J.W. did not give defendant permission to take Vernita to Waukegan. Defendant failed to return with Vernita, and J.W. contacted the police.
Defendant and the victim were observed entering an establishment in Kenosha known as the "400 Club” at about 11:35 p.m. on May 29. Upon arrival at the 400 Club, defendant used the telephone, and a short time later a cab arrived to pick up defendant and Vernita. One of the patrons of the 400 Club testified that the cab driver’s name was K. Cab driver K.H. testified that at 11:35 p.m. on May 29 he was dispatched to the 400 Club where he picked up a black man and a black girl. Defendant is black, as was Vernita. The man first directed K.H. to drive to a location in Zion, Illinois. When they arrived, the man asked K.H. to drive to Waukegan. K.H. dropped the man and girl off near Slater’s Barbeque in Waukegan. J.A. was working in the area near Slater’s Barbeque in the early morning hours of May 30. At about 1:30 a.m., he observed a black man wearing a large floppy hat walking with a young girl near Slater’s Barbeque. Slater’s Barbeque is located about two blocks from the building where Vernita’s body was discovered.
On May 31,1984, a Waukegan police officer observed defendant near defendant’s sister’s house. When the officer activated his squad car’s lights, defendant fled. The State also presented evidence that subsequent to Vernita Wheat’s disappearance, defendant attempted to obtain false identification cards and defendant left the State.
A.R., an acquaintance of the Wheats, testified on defendant’s behalf that on the afternoon of May 30, 1984, she saw Vernita and defendant walking together in front of her house in Kenosha. A.R. waved to Vernita and Vernita waved back.
The jury was instructed on theories of intentional murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(1)), murder based on knowledge of a strong probability of death or great bodily harm (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(2)) and felony murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(3)) based on aggravated kidnapping. The jury returned general verdicts of guilty of aggravated kidnapping and murder.
Thereafter, a bifurcated death penalty hearing was conducted before the jury that had found defendant guilty. At defendant’s request, attorneys Melius and Pantsios were reappointed to represent him at sentencing. At the first stage of sentencing, the jury found that defendant was at least 18 years of age at the time of the murder and was eligible for the death penalty on the basis that he had been convicted of intentional murder in Indiana and Ohio, under laws substantially similar to the laws of the State of Illinois (Ill. Rev. Stat. 1983, ch. 38, 9—1(b)(3)). The record reveals that the Indiana and Ohio murders occurred after the murder of Vernita Wheat, but defendant was tried for those murders first. The jury also found defendant eligible for the death penalty because the victim was under 12 years of age and death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)(7).) The State also sought to impose the death penalty on the basis that defendant personally killed the victim and acted knowingly or intentionally. (Ill. Rev. Stat. 1983, ch. 38, par. 9— l(6)(b).) However, the jury could not reach a verdict finding defendant eligible for the death penalty on this basis.
After the jury found defendant eligible for the death penalty, defendant again requested to act pro se. The trial court granted the request and attorneys Melius and Pantsios were again appointed to act as advisors. At the second stage of the sentencing proceedings, the State introduced evidence that in June and July of 1984, defendant participated in the murders of seven-year-old Tamika Turks and Eugene Scott, whose bodies were discovered in Indiana; 15-year-old Tonnie Storey, Marlene Walters and Virginia Temple and her nine-year-old daughter, Rachelle, whose bodies were discovered in Ohio; and Donna Williams, whose body was discovered in Michigan. At the time of trial in the instant case, defendant had already been found guilty of the murders of Tamika Turks, Marlene Walters and Tonnie Storey. The State also presented evidence of defendant’s involvement in other offenses during this time period, including attempted murder, sexual assault, robbery and kidnapping.
As evidence in mitigation, defendant presented the testimony of Reverend Lloyd R. Davis, pastor of the Christian Fellowship Church in Waukegan, who had counselled defendant. According to Reverend Davis, defendant sought spiritual guidance and indicated his desire to find peace with God.
The jury unanimously found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty, and the trial court sentenced defendant to death. As noted above, this court affirmed the conviction and sentence. On May 31, 1991, defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.). The circuit court dismissed all of the claims in defendant’s petition, as amended, except a portion of defendant’s claim of ineffective assistance of counsel relating to trial counsel’s performance during the first stage of sentencing (eligibility), and his claim that his waiver of counsel at trial and at the second stage of sentencing (aggravation/mitigation) was invalid. Following an evidentiary hearing, the circuit court denied those claims. This appeal followed.
ANALYSIS
I
At the outset, we note that the circuit court ruled that numerous claims in defendant’s post-conviction petition were waived because they could have been raised in defendant’s direct appeal. A proceeding under the Post-Conviction Hearing Act does not constitute an appeal. Rather, the Act permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. (People v. Mahaffey (1995), 165 Ill. 2d 445, 452; People v. Thompkins (1994), 161 Ill. 2d 148, 157.) It is well established that the scope of post-conviction review is limited to constitutional matters which have not been, and could not have been, previously adjudicated. (People v. Brisbon (1995), 164 Ill. 2d 236, 245; People v. Winsett (1992), 153 Ill. 2d 335, 346.) Accordingly, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided and issues that could have been raised on direct appeal but were not are waived. (Mahaffey, 165 Ill. 2d at 452; People v. Thomas (1995), 164 Ill. 2d 410, 416; People v. Flores (1992), 153 Ill. 2d 264, 274; People v. Collins (1992), 153 Ill. 2d 130, 135.) Occasionally, these procedural bars may be relaxed when fundamental fairness requires. Thompkins, 161 Ill. 2d at 158.
It is true that numerous claims in defendant’s post-conviction petition involve matters documented in the trial record which could have been raised on direct appeal. Nevertheless, in his post-conviction petition, defendant alleges that appellate counsel’s failure to raise these issues on direct appeal constitutes ineffective assistance of counsel. A defendant is guaranteed the effective assistance of counsel on appeal. (Evitts v. Lucey (1985), 469 U.S. 387, 393-97, 83 L. Ed. 2d 821, 828-30, 105 S. Ct. 830, 834-37; Flores, 153 Ill. 2d at 277.) This court has held that the doctrine of waiver should not bar consideration of an issue where the alleged waiver stems from incompetency of counsel on appeal. (People v. Salazar (1994), 162 Ill. 2d 513, 520-21; Winsett, 153 Ill. 2d at 346; Flores, 153 Ill. 2d at 282; People v. Ruiz (1989), 132 Ill. 2d 1, 10; see People v. Brisbon (1995), 164 Ill. 2d 236, 255.) Claims of ineffective assistance of appellate counsel are evaluated under the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, which requires the defendant to show both deficient performance by counsel and resultant prejudice. We note that appellate counsel "has no obligation to raise every conceivable argument which might be made, and counsel’s assessment of what to raise and argue will not be questioned unless it can be said that his judgment in this regard was patently erroneous.” Collins, 153 Ill. 2d at 140.
Accordingly, we will examine the merits of the issues which could have been raised on direct appeal as they relate to defendant’s allegations of ineffective assistance of counsel on appeal. We note that unless the underlying issues are meritorious, deféndant obviously suffered no prejudice due to appellate counsel’s failure to raise them on direct appeal. See Winsett, 153 Ill. 2d at 347.
II
Turning to the merits of defendant’s post-conviction claims, we first address those claims which the circuit court denied following an evidentiary hearing.
A. Competence to Waive Counsel
Defendant contends that the circuit court in the post-conviction proceedings erred in concluding that he was competent to waive counsel during trial and the second stage of sentencing. A criminal defendant may not waive his right to counsel unless he does so " 'competently and intelligently.’ ” (Godinez v. Moran (1993), 509 U.S. 389, 396, 125 L. Ed. 2d 321, 330, 113 S. Ct. 2680, 2685, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 468, 82 L. Ed. 1461, 1469, 58 S. Ct. 1019, 1025.) Competence to waive counsel is measured by the same standard as competence to stand trial. (People v. Mahaffey (1995), 166 Ill. 2d 1, 19, citing Godinez, 509 U.S. at 396, 125 L. Ed. 2d at 330, 113 S. Ct. at 2685.) A defendant is considered unfit to stand trial if, because of a mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (People v. Eddmonds (1991), 143 Ill. 2d 501, 512.) Fitness speaks only to a person’s ability to function within the context of trial; it does not refer to sanity or competence in other areas. (See People v. Fowler (1991), 222 Ill. App. 3d 157, 164.) A person can be fit for trial although his mind may be otherwise unsound. See Fowler, 222 Ill. App. 3d at 164.
At the post-conviction evidentiary hearing, defendant’s trial attorneys and an attorney who represented defendant in a Federal kidnapping prosecution testified that defendant was extremely distrustful, uncooperative and difficult to work with. Defendant also presented the testimony of Dr. Leonard D. Elkun, a physician specializing in forensic psychiatry. Dr. Elkun personally interviewed defendant and reviewed reports from other mental health professionals concerning defendant’s mental and emotional health and various materials relating to legal proceedings and defendant’s personal background. Dr. Elkun formed the opinion that at the time defendant waived counsel, he was suffering from borderline personality disorder, a serious mental illness characterized by a poor capacity to organize one’s life and plan for the future, the elevation of personal motivations above societal values, unstable interpersonal relationships, and instability in mood. According to Dr. Elkun, individuals suffering from borderline personality disorder experience transient psychotic episodes, but may otherwise appear outwardly normal. Dr. Elkun testified that defendant’s grandmother, allegedly a practitioner of voodoo, instilled in defendant the belief that he possessed supernatural powers and was exempt from the laws of society. Dr. Elkun believed defendant’s condition caused him to overestimate his ability to conduct his own defense. According to Dr. Elkun, defendant’s paranoid thinking, characterized by mistrust of his attorneys, Combined with his delusions of grandeur, prevented defendant from being able to make a knowing and intelligent decision whether to waive counsel.
Defendant contends that in view of Dr. Elkun’s testimony, the circuit court erred in denying post-conviction relief. We disagree. Mindful that determinations by the trial court in post-conviction proceedings will not be disturbed on review unless contrary to the manifest weight of the evidence (People v. Eddmonds (1991), 143 Ill. 2d 501, 514), we note that the ultimate issue of fitness is for the trial court, not the experts, to decide (see People v. Bleitner (1989), 189 Ill. App. 3d 971, 976). The mere fact that a psychiatrist expresses the opinion that the defendant was unfit does not require a similar finding by the trial court; it is the trial court’s function to assess the credibility and weight to be given to psychiatric expert testimony. See Bleitner, 189 Ill. App. 3d at 976.
The circuit court indicated that in light of all the evidence presented, it did not find Dr. Elkun’s testimony to be credible. In this regard we note that the circuit court had the opportunity to observe Dr. Elkun’s demeanor on the witness stand, including his demeanor during the State’s sometimes vigorous cross-examination. In addition to Dr. Elkun’s testimony, the trial court heard testimony from mental health professionals who had examined defendant in 1984 and found him fit to stand trial on criminal charges in another jurisdiction. Other evidence before the circuit court included the observations of defendant’s demeanor and behavior by his trial attorneys and others who had frequent contact with him prior to and during his trial. While these witnesses lacked formal training in psychiatry or psychology, nonexperts who have had an opportunity to observe a person may give their opinions of mental condition or capacity based on their observations, and such lay opinions may overcome an expert opinion. (See Bleitner, 189 Ill. App. 3d at 976.) Moreover, in assessing defendant’s fitness the circuit court could properly consider defendant’s conduct at trial, as reflected in the trial transcripts. Defendant’s conduct at trial clearly demonstrates that he understood the nature and purpose of the proceedings against him.
Dr. Elkun’s testimony that defendant suffered paranoid thought processes might suggest an inability to assist counsel in his defense. However, there was testimony that while acting pro se defendant was sometimes agreeable to the recommendations of the attorneys acting as his advisors. From this evidence it is possible to infer that defendant’s distrustfulness was not so pervasive as to constitute paranoia. While Dr. Elkun offered the opinion that defendant’s decision to conduct his own defense was symptomatic of paranoid thinking, the trial court could conclude that the decision may have been in part a response to the fact that in three prior capital cases in other jurisdictions, his attorneys had been unable to save him from the death penalty. In view of all the circumstances, the circuit court’s determination that defendant’s waiver of counsel was valid is not against the manifest weight of the evidence.
B. Ineffective Assistance of Counsel During the Eligibility Phase of the Sentencing Proceedings
Defendant contends that he was deprived of effective assistance of counsel during the first stage of the sentencing proceedings. According to defendant, his attorneys should have asserted a defense to imposition of the death penalty based on the eighth amendment proportionality principles set forth in Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368, and Tison v. Arizona (1987), 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676. In Enmund, the Court concluded that the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) precludes capital punishment for an offender "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” (Enmund, 458 U.S. at 797, 73 L. Ed. 2d at 1151, 102 S. Ct. at 3376.) Subsequently, in Tison, which was decided shortly after the sentencing proceedings in the case at bar, the Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Tison, 481 U.S. at 158, 95 L. Ed. 2d at 145, 107 S. Ct. at 1688.
Defendant maintains that certain physical and testimonial evidence presented at trial suggests that even to the extent he was involved in the murder of Vernita Wheat, he did not act alone. Defendant asserts that the evidence provides no basis for a rational conclusion as to the respective roles and mental states of the participants, and accordingly it cannot be established that he acted with the degree of personal culpability necessary to permit imposition of the death penalty. At the post-conviction evidentiary hearing, defendant presented the testimony of Robert Isaacson, a defense attorney with extensive experience in capital cases. Isaac-son testified that defendant’s attorneys should have sought a ruling from the trial court that defendant was ineligible for the death penalty as a matter of law. According to Isaacson, if the trial court declined to rule that defendant was ineligible for the death penalty, defendant’s attorneys should have requested that the jury be instructed in accordance with Enmund and should have offered argument on the question. Defendant contends that trial counsel’s failure to take these steps constituted ineffective assistance of counsel. We disagree.
As noted, claims of ineffective assistance of counsel based on deficient representation of a criminal defendant are evaluated in accordance with the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Strickland provides as follows:
"A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.)
Where it is possible to resolve an ineffective-assistance claim on the basis that the defendant suffered no prejudice as a result of counsel’s allegedly defective performance, the claim may be decided against the defendant without consideration of whether counsel’s performance was actually deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2070; see also Mahaffey, 165 Ill. 2d at 457-58.
Having carefully reviewed the trial record, we conclude that the omissions by trial counsel upon which defendant bases his ineffective-assistance claim did not result in prejudice within the meaning of Strickland. Enmund and Tison place limits on when the death penalty may be imposed on a person who aids and abets a felony during the course of which a murder is committed by others. Neither decision limits the imposition of capital punishment upon an offender who personally performs the acts causing death. (See Mann v. Dugger (11th Cir. 1987), 817 F.2d 1471, 1478, vacated on other grounds on reh’g (11th Cir. 1987), 828 F.2d 1498; State v. Atwood (1992), 171 Ariz. 576, 650, 832 P.2d 593, 667; People v. Hayes (1990), 52 Cal. 3d 577, 632, 802 P.2d 376, 410, 276 Cal. Rptr. 874, 908; State v. Fields (Idaho 1995), 908 P.2d 1211.) In finding defendant guilty of murder under the instructions given in this case, the jury necessarily determined beyond a reasonable doubt that defendant himself killed the victim. As the State correctly points out, the jury was not instructed on the principles of accountability. All of the murder instructions required the jury to find that defendant performed the acts causing Vernita Wheat’s death in order to return a guilty verdict.
We note that "Enmund does not impose any particular form of procedure upon the States.” (Emphasis in original.) (Cabana v. Bullock (1986), 474 U.S. 376, 386, 88 L. Ed. 2d 704, 716, 106 S. Ct. 689, 697.) What is required is that "the State’s judicial process leading to the imposition of the death penalty must at some point provide for [the requisite findings].” (Emphasis in original.) (Bullock, 474 U.S. at 390-91, 88 L. Ed. 2d at 719, 106 S. Ct. at 699.) Accordingly, the jury’s guilt phase verdict will satisfy Enmund when the verdict necessarily establishes either: (1) that the defendant personally killed the victim or (2) that the defendant acted with the requisite culpable mental state in cases where an accomplice may have killed the victim. (See Andrews v. Shulsen (10th Cir. 1986), 802 F.2d 1256, 1272 ("A death sentence may rest upon a guilty verdict which necessitates a finding of intent”); Wingo v. Blackburn (5th Cir. 1986), 783 F.2d 1046, 1050 (where jury was instructed that it could not find the defendant guilty of first degree murder unless he was proved to have intended to kill, Enmund did not impose a constitutional requirement that the instruction on specific intent be repeated at the sentencing stage); State v. Atwood (1992), 171 Ariz. 576, 650, 832 P.2d 593, 667 (jury’s finding that defendant actually killed victim implicit in its verdict of guilty of first degree felony murder was sufficient under Enmund); State v. Fields (Idaho 1995), 908 P.2d 1211 (where the jury found at the guilt phase that the defendant actually killed his victim, Enmund was inapposite); Mann v. State (Okla. 1988), 749 P.2d 1151, 1161 ("To apply the Enmund criteria and its progeny in a malice aforethought murder at the sentencing stage, would be the equivalent of asking the jury to re-examine their finding of guilt” (emphasis in original)); Webb v. State (Tex. Crim. App. 1988), 760 S.W.2d 263, 269 (where jury was required to find an intent to promote or assist commission of an intentional murder before it could convict defendant as a party to the offense in the first instance, jury’s later punishment verdict was not fatally defective).) Because the jury determined at the guilt phase that defendant himself killed the victim, defendant was not entitled to have the question revisited at the sentencing phase, and defense counsel’s failure to submit instructions and offer argument on Enmund caused no prejudice under the Strickland test. Since from a procedural standpoint there was no right to have the jury pass upon the issue at sentencing, we need not speculate as to what the jury would have found had the issue been before it. Similarly, assuming the evidence supports the jury’s determination, a motion to bar imposition of the death penalty would have been properly denied, and defense counsel’s failure to make such a motion was not prejudicial under Strickland.
Defendant maintains, however, that the evidence at trial suggests the involvement of another individual who may have been the actual killer. Defendant notes J.A.’ testimony that he observed a black male wearing a large hat walking with a young girl near the building where the victim’s body was discovered. Defendant points out that there was no testimony that he was wearing a hat during the relevant time frame. Defendant also contends that pubic hairs not belonging to him were present at the victim’s autopsy. Lastly, defendant notes the unidentified fingerprint found next to his own on the door to the bathroom where the victim’s body was discovered.
We are not persuaded that this evidence raises a reasonable doubt as to whether defendant performed the acts causing Vernita Wheat’s death. First, that the individual observed by J.A. wore a hat does not mean that that individual was someone other than defendant. Even if defendant was not seen wearing a hat at other points in time, he might have worn one at the time Adams made his observation. Defendant’s reliance on pubic hairs which he claims were present at the victim’s autopsy is similarly unpersuasive. Defendant’s argument is somewhat misleading inasmuch as he neglects to mention conflicting evidence regarding the origin of the pubic hairs and other testimony casting doubt on whether the hairs belonged to a participant in the crimes. Dr. Larry Blum performed the autopsy with the assistance of James Murray, a deputy coroner for Lake County. Murray testified that he observed Dr. Blum "pull” hairs from the pubic area of the victim. On the other hand, Dr. Blum testified that he did not recall taking any pubic hairs from the victim and did not discover any loose hairs in the pubic area of the victim. Dr. Blum also testified that he found no signs of sexual abuse. Chester Blythe, a special agent With the Federal Bureau of Investigation, compared the pubic hairs to specimens obtained from defendant and concluded they did not match. However, Special Agent Blythe also testified that the hairs appeared to have been forcibly removed. Moreover, he noted the presence of tissue on the hairs, which was consistent with hairs obtained from a decomposing body. Given the somewhat conflicting testimony of Dr. Blum and Murray, and Agent Blythe’s testimony suggesting that the hairs may have been plucked from a decomposing body, the jury need not have viewed the pubic hairs as establishing the involvement of an accomplice.
Finally, although the unidentified fingerprint near defendant’s own fingerprint might theoretically have been left by an accomplice, it might also have been left by someone unconnected to the crime, and its proximity to defendant’s fingerprint could rationally be attributed to coincidence. We are aware that in rebuttal to defendant’s closing argument the State asserted that the unidentified fingerprint belonged to an unknown party to the crime. Nonetheless, the State’s argument was not binding on the jury. As noted above, the jury was not instructed on principles of accountability, and thus to convict defendant of murder under any of the theories presented, it had to conclude beyond a reasonable doubt that defendant was the actual killer. The question before us is whether the evidence supports this determination. We conclude that it does. Where circumstantial evidence relied upon to support the defense that another committed the crime is unsatisfactory, based upon mere surmise or possibility, without evidence to support it, a hypothesis of innocence may be rejected by the trier of fact. (People v. Hendricks (1986), 145 Ill. App. 3d 71, 102, rev’d on other grounds (1990), 137 Ill. 2d 31.) In the case at bar, the jury was under no obligation to speculate that the victim may have been killed by a hypothetical accomplice.
Even if we were to adopt defendant’s theory that Vernita Wheat may have been killed by an accomplice, we would still conclude that trial counsel’s inaction was not prejudicial. Under Tison, when a murder occurs during the course of another felony, major participation in the felony combined with reckless indifference to human life satisfies the eighth amendment’s standard of personal culpability required for imposition of capital punishment. Although Tison was decided after the sentencing proceedings in the case at bar, defendant must demonstrate prejudice with reference to the Tison standard even though the existing standard under Enmund alone may arguably have been more favorable to defendant. See Lockhart v. Fretwell (1993), 506 U.S. 364, 122 L. Ed. 2d 180, 113 S. Ct. 838 (although objection to death penalty eligibility might have been successful based on existing precedent at time of death penalty hearing, habeas corpus petitioner could not rely on that precedent, which had since been overruled, to demonstrate that trial counsel’s failure to make the objection was prejudicial).
Even assuming, arguendo, that defendant may have had an accomplice who actually killed the victim, defendant was clearly a major participant in the underlying felony of aggravated kidnapping. Additionally, although the State’s case depended upon circumstantial evidence which does not elucidate all the details of the victim’s death, when the evidence is viewed in its entirety, the conclusion that defendant ¡acted at least with reckless indifference to the victim’s life is practically inescapable. The evidence clearly establishes that defendant kidnapped the young victim and that defendant was present at the location where the victim’s body was discovered with her hands and chest bound and a cable wrapped around her neck. Given this evidence, it strains credulity to postulate that defendant might have acted with a mental state less culpable than reckless indifference to human life. We conclude both that the evidence was sufficient to establish beyond a reasonable doubt the requisite culpability under Tison, and that no reasonable probability exists that the jury would have found otherwise if the question had been submitted to it.
Ill
We next consider those post-conviction claims which the circuit court dismissed without an evidentiary hearing.
A. Ineffective Assistance of Counsel Prior to Trial
i. Failure to Investigate Mitigating Evidence
Defendant contends that his attorneys’ performance prior to trial was deficient because they failed to conduct any meaningful investigation into his personal background and mental or emotional condition for purposes of developing mitigating evidence for use during the penalty phase of the proceedings. Defendant claims that an adequate investigation would have yielded evidence of his severe mental or emotional problems and that he experienced an extremely troubled childhood. According to defendant, had this evidence been available at the second stage of sentencing (aggravation /mitigation), there is a reasonable probability that the jury would have spared him from the death penalty. The circuit court dismissed this claim without an evidentiary hearing, concluding that the omitted evidence would not have changed the outcome of sentencing.
Defendant’s post-conviction petition includes affidavits from family members and acquaintances, and affidavits from several mental health professionals discussing defendant’s personal background and offering opinions regarding defendant’s mental or emotional condition. According to. these affidavits, defendant was raised in a highly unstable, abusive and sexually inappropriate environment. The affidavits from mental health professionals variously indicated, inter alia: (1) a probable diagnosis of borderline personality disorder (which sometimes involves psychotic episodes when the sufferer is subjected to extreme stress); (2) that defendant suffered from a severe personality disorder with borderline, paranoid and antisocial elements; (3) that defendant was probably suffering from manic-depressive psychosis at the time of the offenses; and (4) that there were strong indications that defendant’s aberrant behavior and personality disorder were linked, in part, to attentional deficit hyperactivity disorder and associated emotional stress during childhood and adulthood.
Where an adequate investigation has been conducted, the failure to present mitigating evidence does not itself establish that defense counsel was ineffective. (See Burger v. Kemp (1987), 483 U.S. 776, 97 L. Ed. 2d 638, 107 S. Ct. 3114; People v. Perez (1992), 148 Ill. 2d 168, 186.) An informed decision not to present certain mitigating evidence may represent a valid strategic choice, particularly where the evidence is potentially damaging. However, where counsel has neglected to conduct a proper investigation into mitigating circumstances, the failure to introduce mitigating evidence cannot be attributed to strategy. (Perez, 148 Ill. 2d at 190; see also Baxter v. Thomas (11th Cir. 1995), 45 F.3d 1501, 1514, quoting Horton v. Zant (11th Cir. 1991), 941 F.2d 1449, 1462 (" '[0]ur case law rejects the notion that a "strategic” decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them’ ”).) In such cases, counsel’s performance falls below objective standards of reasonableness.
Even where counsel’s performance is deficient due to the failure to investigate mitigating circumstances, the defendant must still demonstrate prejudice to sustain a claim of ineffective assistance of counsel. In evaluating prejudice in a capital sentencing context, "the question is whether there is a reasonable probability that, absent the errors, the factfinder *** would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” (Strickland v. Washington (1984), 466 U.S. 668, 695, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068-69.) In making this determination, a court must consider the totality of the evidence, and "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2069.
This case differs from the typical "failure to investigate” case in that, although defendant was represented by counsel for a period prior to trial, he invoked the right to self-representation at the aggravation/ mitigation stage of sentencing. The State argues that because defendant proceeded without counsel at the aggravation /mitigation stage, he may not pursue an ineffective-assistance claim relating to the outcome of that portion of the proceedings. (But see Hance v. Kemp (1988), 258 Ga. 649, 650, 373 S.E.2d 184, 186 (although defendant was permitted to act as "co-counsel” at sentencing, defendant could pursue an ineffective-assistance claim based on counsel’s alleged failure properly to investigate, prepare and present evidence of his mental condition and family background where it appeared that the defendant’s claim of ineffectiveness related primarily to the performance of his attorney before defendant sought to act as co-counsel).) We need not address this argument. Even if defendant’s waiver of counsel does not foreclose the present claim, we conclude that the circuit court committed no error in dismissing the claim without an evidentiary hearing on the basis that trial counsel’s alleged failure to investigate was not prejudicial.
A defendant is entitled to an evidentiary hearing on a post-conviction claim only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. (People v. Guest (1995), 166 Ill. 2d 381, 389; People v. Gaines (1984), 105 Ill. 2d 79, 91-92.) The trial court’s determination will not be disturbed unless manifestly erroneous. (Guest, 166 Ill. 2d at 389; People v. Griffin (1985), 109 Ill. 2d 293, 303.) We acknowledge the critical importance to the sentencing decision of evidence of capital defendant’s background and any mental or emotional problems that afflict him. (See, e.g., Baxter v. Thomas (11th Cir. 1995), 45 F.3d 1501, 1515, quoting Middleton v. Dugger (11th Cir. 1988), 849 F.2d 491, 495 ("Psychiatric mitigating evidence ’has the potential to totally change the evidentiary picture’ ”).) At the same time, not every mental or emotional condition that can be classified as a "disorder” will necessarily be mitigating, and in the case at bar it is not clear that expert testimony would have produced a profile that the jury would have viewed in an entirely sympathetic light. For instance, the affidavit of clinical psychologist Nancy Schmidtgoessling, Ph.D., submitted in support of the post-conviction petition, indicates that defendant had developed personality characteristics likely to be viewed as aggravating rather than mitigating, namely a lack of empathy and lack of guilt or anxiety attached to illegal or antisocial behaviors.
Moreover, we must assess prejudice in a realistic manner based on the totality of the evidence. Accordingly, it is improper to focus solely on the potential mitigating evidence. As our cases illustrate, the nature and extent of the evidence in aggravation must also be considered. See People v. Thomas (1995), 164 Ill. 2d 410, 427-29; People v. Caballero (1992), 152 Ill. 2d 347, 365-67; People v. Eddmonds (1991), 143 Ill. 2d 501, 534-36; see also Stafford v. Saffle (10th Cir. 1994), 34 F.3d 1557, 1564 ("In deciding whether Stafford was prejudiced, we must keep in mind the strength of the government’s case and the aggravating factors the jury found as well as the mitigating factors that might have been presented if Stafford had been provided effective assistance of counsel”); Schlup v. Armontrout (8th Cir. 1991), 941 F.2d 631, 639 (in light of numerous aggravating circumstances, expert psychiatric or psychological testimony would not with "reasonable probability” have been likely to change the defendant’s sentence); Campbell v. Kincheloe (9th Cir. 1987), 829 F.2d 1453, 1464 (even if evidence of defendant’s background, childhood, family relationships, child abuse, upbringing and drug abuse could have been presented without opening the door for damaging rebuttal evidence by the prosecution, given the overwhelming aggravating factors and the heinous nature of the crime there was no reasonable likelihood the jury’s verdict would have been different had the mitigating evidence been introduced); Squires v. Dugger (M.D. Fla. 1992), 794 F. Supp. 1568, 1577 (evidence of the defendant’s unfortunate childhood did not outweigh aggravating factors, and no prejudice resulted from counsel’s failure to present mitigating evidence of the defendant’s troubled childhood).
In light of the overwhelming aggravating circumstances, the introduction of potentially mitigating evidence of defendant’s background and mental and emotional health would not have been sufficient to change the jury’s sentencing decision. The crime in the case at bar was a horrifying and despicable attack on a defenseless child accomplished by deception of the child’s mother. Moreover, the jury heard evidence that in the weeks following the murder of Vernita Wheat, defendant engaged in a brutal interstate crime spree, murdering or terrorizing numerous children and adults. Given the aggravating circumstances in the case at bar and the nature of the proposed mitigating evidence, the only realistic conclusion to be drawn is that there is no reasonable probability that the proposed mitigating evidence would have persuaded the jury that the balance of aggravating and mitigating factors did not warrant the death penalty.
Defendant relies principally on People v. Perez (1992), 148 Ill. 2d 168, where this court ordered a new sentencing hearing based on counsel’s failure to properly investigate and present mitigating evidence. In Perez, a diligent investigation would have revealed, inter alla, that during childhood the defendant had been abandoned by his family and that the defendant’s IQ placed him in a category between "low average (dull)” and "mentally deficient.” This court concluded that, under the circumstances of the case, there was a reasonable probability that had the jury known of the mitigating evidence which counsel failed to investigate, the jury would not have found that the death penalty was warranted.
In the case at bar, defendant’s conduct in defending himself at trial suggests that he is of at least an average intellectual capacity, while the evidence of his crimes establishes him as a cunning predator. The quantum of aggravating evidence here also clearly distinguishes this case from Perez. In Perez, the defendant, an inmate of the Illinois correctional system, was eligible for the death penalty for murdering a fellow inmate (see Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(2)). Other aggravating circumstances consisted of the defendant’s prior convictions for armed robbery and purse snatching, the fact that the defendant had held a scissors blade to the neck of a victim of an armed robbery and defendant’s disciplinary violations in prison. (See People v. Perez (1985), 108 Ill. 2d 70.) Because the aggravating circumstances in Perez were in no way comparable to the circumstances of the case at bar, defendant’s reliance on Perez is misplaced. (See also People v. Thomas (1995), 164 Ill. 2d 410, 430.) The circuit court did not err in dismissing defendant’s claim without an evidentiary hearing.
ii. Failure to Move for Substitution of Judge
Defendant contends that trial counsel’s failure to move for a substitution of judge at trial represents ineffective assistance of counsel. Apparently, at the time of the commission of the offense in the case at bar, defendant was free on bond with sex offense charges pending against him. The trial judge in the case at bar was also the judge who admitted defendant to bail. A local newspaper editorial was critical of the fact that defendant was free on bond at the time of the offense. While defendant cites no authority involving similar facts, he insists that under these circumstances trial counsel’s failure to move for substitution of judges deprived him of an impartial tribunal. We disagree.
This court has noted that outside of situations where a judge’s pecuniary interest in a case requires disqualification, "[ajnother guiding principle on the issue of judicial bias is whether the case involves a possible temptation such that the average person, acting as judge, could not hold the balance nice, clear and true between the State and the accused.” (People v. Del Vecchio (1989), 129 Ill. 2d 265, 275, citing Tumey v. Ohio (1926), 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444.) In Del Vecchio, this court further observed that only under the most extreme cases would disqualification for bias or prejudice be constitutionally required. (Del Vecchio, 129 Ill. 2d at 275, citing Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 821, 89 L. Ed. 2d 823, 832, 106 S. Ct. 1580, 1585.) No doubt any judge would be distressed to learn that an individual admitted to bail by that judge had thereafter been accused of committing a violent crime. But to conclude from this alone that the judge could not set aside personal feelings and act in an impartial manner would give too little credit to the temperament and integrity of members of the bench.
The additional element of media attention to defendant’s freedom on bail at the time of the offense does not alter our conclusion. The mere fact that a judge has been subjected to press criticism in connection with a case or a party does not necessarily require the judge’s disqualification. In one court’s words, "[b]y training and inclination, judges meet media criticism of their actions with robust insensitivity.” (United States v. Martorano (3d Cir. 1989), 866 F.2d 62, 69 (although the press had criticized the trial judge for acting as a character witness for defendant’s attorney in other proceedings, court rejected argument that the trial judge dealt harshly with defendant to refute the implication of favoritism towards defendant’s attorney).) In any event, the editorial in the case at bar posed no significant danger of judicial bias. While the editorial mentioned that defendant was free on bond at the time of Vernita Wheat’s murder, its overall theme was that the criminal justice system as a whole had failed. The criticism was not levelled against the trial judge personally, and the editorial did not fault the trial judge personally for defendant’s release on bond. Indeed, the trial judge is not even identified by name. Trial counsel’s failure to move for a substitution of judges did not deprive defendant of an impartial tribunal or otherwise engender prejudice.
iii. Per se Sixth Amendment Violation
Defendant maintains that the Lake County public defender’s office was deficient in the areas of training, supervision and the use of investigative and mitigation services in capital cases, and that attorney Pantsios personally lacked adequate training in defense of capital cases. Defendant submits that these circumstances constitute "resource deprivation” and give rise to a per se violation of the sixth amendment right to counsel. As has been seen, ineffective-assistance claims are ordinarily evaluated in accordance with the Strickland test which requires a showing of deficient performance and resultant prejudice. However, defendant cites United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039, which noted that in some situations ineffective assistance may be presumed without inquiry into counsel’s actual performance.
In Cronic, the defendant was charged with mail fraud in connection with a "check kiting” scheme. An inexperienced lawyer with a real estate practice was appointed substitute counsel for the accused and was afforded 25 days to prepare for trial. The Cronic Court indicated that "[circumstances *** may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” (Cronic, 466 U.S. at 659-60, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047.) To illustrate, the Cronic Court cited Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55. In Powell the defendants had been indicted for a highly publicized capital crime. Six days before trial, the trial court appointed "all members of the bar” for purposes of arraignment. On the day of trial an out-of-State attorney appeared in court, but indicated that he was unwilling to assume the defense of the accused because he was unfamiliar with the case and local procedures. Notwithstanding his protestations, the attorney was appointed to represent the defendants with whatever help the local bar could provide. In the Cronic Court’s view, these circumstances in Powell justified a presumption of prejudice. In Cronic itself, however, the Court found that the circumstances surrounding the defendant’s representation—the lawyer’s level of experience and the time for trial preparation—did not justify a similar presumption. With regard to the former circumstance, the Court stated that ”[t]he character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation.” Cronic, 466 U.S. at 665, 80 L. Ed. 2d at 672, 104 S. Ct. at 2050.
The per se approach suggested in Cronic is "in all events the exception, not the rule.” (Scarpa v. Dubois (1st Cir. 1994), 38 F.3d 1, 12.) We believe the exception is properly limited to cases, involving circumstances of a similar magnitude to those in Powell. Moreover, the character of the circumstances, as well as their magnitude, is significant. The per se approach is available when the circumstances are such that "any lawyer, even a fully competent one” would be unlikely to be able to provide effective assistance. (Cronic, 466 U.S. at 659-60, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047.) Thus, Cronic contemplates an inquiry into the circumstances surrounding the defendant’s representation in a particular case; it does not envision scrutiny of the attorney’s overall competence. Consequently, the lawyer’s lack of relevant practice experience in Cronic was viewed by the Court as a factor in evaluating his actual performance, but did not justify a presumption of ineffective assistance of counsel.
While defendant styles his claim as one of "resource deprivation,” the thrust of his allegations goes to a narrow aspect of the overall competence of his attorneys and the Lake County public defender’s office to represent capital defendants. (There appears to be no dispute that the attorneys were experienced and capable in the area of criminal defense generally.) The general allegations in this case of inadequate training and deficient office practices do not demonstrate circumstances of either the character or magnitude that would give rise to a per se ineffective assistance of counsel claim.
B. Waiver of Counsel in a Capital Case
Defendant argues that his constitutional rights were violated when the trial court permitted him to waive counsel in a capital case. In Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525, the Court held that a criminal defendant has a constitutional right to refuse State-provided counsel and proceed without representation if he voluntarily and intelligently elects to do so. (See Silagy v. Peters (7th Cir. 1990), 905 F.2d 986, 1007.) Defendant contends, however, that Faretta is not controlling here because it was not a capital case. Defendant argues that the death penalty has been recognized to be qualitatively different from other forms of punishment. (See Gardner v. Florida (1977), 430 U.S. 349, 357, 51 L. Ed. 2d 393, 401, 97 S. Ct. 1197, 1204 (plurality opinion).) The eighth amendment requires increased reliability of the process by which capital punishment may be imposed. (Herrera v. Collins (1993), 506 U.S. 390, 404, 122 L. Ed. 2d 203, 219, 113 S. Ct. 853, 863.) It is defendant’s position that the demands of increased reliability in the capital setting require that the accused be represented by counsel notwithstanding his own desire to conduct his defense pro se. We disagree.
In Faretta, the Court explained:
"Although not stated in the [Sixth] Amendment in so many words, the right to self-representation — to make one’s own defense personally — is *** necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
The counsel provision supplements this design. It speaks of the 'assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. *** It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. [Citations.] This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel 'represents’ the defendant only through a tenuous and unacceptable legal fiction.” Faretta, 422 U.S. at 819-21, 45 L. Ed. 2d at 572-73, 95 S. Ct. at 2533-34.
This reasoning applies with no less force in a capital case than in other cases. We are not persuaded by defendant’s argument that the heightened need for reliability in capital cases justifies forcing the accused to accept representation by counsel. Defendant’s argument assumes that, the representation by counsel is invariably beneficial to the accused. However, in Faretta the Court noted that it is conceivable that in rare instances the accused may be able to present his case more effectively by conducting his own defense than entrusting his defense to counsel. Moreover, as the Court observed, "[plersonal liberties are not rooted in the law of averages.” Faretta, 422 U.S. at 834, 45 L. Ed. 2d at 581, 95 S. Ct. at 2540.
In People v. Silagy (1984), 101 Ill. 2d 147, 179-81, this court implicitly rejected a distinction between capital and noncapital cases for purposes of the right to self-representation. Reviewing the district court judgment in Federal habeas corpus proceedings related to Silagy, the United States Court of Appeals for the Seventh Circuit explicitly held that the right to self-representation applies in capital sentencing proceedings. (Silagy v. Peters (7th Cir. 1990), 905 F.2d 986, 1007-08.) The Seventh Circuit noted that in Faretta, the Court did not impose any restrictions upon a defendant’s right to refuse the assistance of counsel except to require that the right be "knowingly and intelligently” waived. (Silagy, 905 F.2d at 1007.) The Silagy court further stated that it could "think of no principled reason to deny a death-eligible defendant his Faretta right to proceed without the assistance of counsel.” (Silagy, 905 F.2d at 1007.) Accordingly, the trial court did not err in honoring defendant’s request to conduct his own defense during portions of the original proceedings.
C. Jury Exposure to Pretrial Publicity
Defendant contends his right to a fair trial was compromised because certain members of the jury were exposed to pretrial publicity about the case. Specifically, defendant contends that several jurors were aware that he had already been convicted in other jurisdictions of offenses occurring during the alleged crime spree following the Vernita Wheat murder.
At the outset, we note that defendant, acting pro se, accepted each of the jurors in question. The failure to challenge a juror for cause or by peremptory challenge waives any objection to that juror. (People v. Collins (1985), 106 Ill. 2d 237, 271.) Considerations of waiver aside, defendant’s argument is meritless. A juror’s exposure to publicity about a case is not enough to demonstrate prejudice; jurors need not be totally ignorant of the facts and issues involved. (People v. Sutherland (1992), 155 Ill. 2d 1, 15.) What is essential is the juror’s ability to lay aside impressions or opinions and return a verdict based upon the evidence presented in court. Sutherland, 155 Ill. 2d at 16.
In order to minimize the impact of pretrial publicity, the jury was selected from a pool composed of residents of Rock Island County, rather than Lake County, where the offense occurred. While defendant contends that five jurors were aware of his convictions in other jurisdictions, review of the record reveals that only two of the jurors identified by defendant had such knowledge. Those jurors had only minimal knowledge of the defendant’s other offenses and were apparently unfamiliar with the details of those offenses. Both of the jurors indicated that they believed they could disregard defendant’s prior convictions and decide the issues based solely on the evidence.
A juror’s knowledge of the accused’s prior convictions for other offenses does not create a presumption of prejudice. (Murphy v. Florida (1975), 421 U.S. 794, 44 L. Ed. 2d 589, 95 S. Ct. 2031.) Defendant attempts to distinguish Murphy on the basis that, unlike the case at bar, the prior convictions in Murphy did not arise from the same "crime spree” as the pending charges. We do not find the distinction to be persuasive. Whatever the content of the pretrial publicity, from a constitutional standpoint the ultimate question remains whether the juror is "to be believed when he says he has not formed an opinion about the case.” (Mu’Min v. Virginia (1991), 500 U.S. 415, 425, 114 L. Ed. 2d 493, 506, 111 S. Ct. 1899, 1905 (holding that the accused is not constitutionally entitled to inquire as to the content of pretrial publicity to which prospective jurors have been exposed).) The jurors in question offered their assurances of impartiality, and defendant points to nothing casting suspicion on those assurances.
We note parenthetically that inflammatory pretrial publicity may sometimes rise to a level creating "such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed.” (Patton v. Yount (1984), 467 U.S. 1025, 1031, 81 L. Ed. 2d 847, 854, 104 S. Ct. 2885, 2889, citing Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) However, the jury in this case was selected in Rock Island County, not Lake County, where the offense occurred. Nothing indicates that pretrial publicity generated a sense of community outrage in Rock Island County.
Defendant also contends that some jurors may have been aware that defendant had previously been sentenced to death in other jurisdictions, thus diminishing the jurors’ sense of responsibility for imposing the death penalty in the case at bar. The record provides no support for defendant’s contention that any members of the jury were aware he had previously been sentenced to death.
D. Peremptory Challenges to Jurors Expressing Reservations About the Death Penalty
Defendant argues that the trial court erred in allowing the State to exercise peremptory challenges against certain prospective jurors who expressed some reservations about the death penalty, but whose views did not rise to the level of cause under Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, and its progeny. Under Witherspoon, a prospective juror may not constitutionally be excused for cause based on general objections to the death penalty on moral or religious grounds. Defendant contends that through the use of peremptory challenges the State was able to achieve what it could not achieve through the use of challenges for cause: “a jury uncommonly willing to condemn a man to die” (Witherspoon, 391 U.S. at 521, 20 L. Ed. 2d at 784, 88 S. Ct. at 1776). On several occasions, this court has held that Witherspoon does not limit the use of peremptory challenges. (People v. Williams (1994), 161 Ill. 2d 1, 55-56; People v. Howard (1991), 147 Ill. 2d 103, 136-38; People v. Stewart (1984), 104 Ill. 2d 463, 481-82.) Defendant acknowledges these decisions but urges us to reconsider them. However, we find no persuasive reason to depart from this court’s holdings in this area. Accordingly, the circuit court properly dismissed this post-conviction claim.
E. Death-Qualified Jury
Defendant contends that it was improper to allow “death qualification” of the jury. Defendant maintains that in a case where the same jury determines guilt and decides whether the death penalty will be imposed, it is impermissible to excuse prospective jurors for cause based on their views about the death penalty even when the standard for exclusion under Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, and its progeny has been satisfied. Defendant acknowledges that in Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758, the United States Supreme Court upheld the use of Witherspoon challenges in capital cases where a single jury sits at both the guilt and sentencing phases. However, defendant argues that we should prohibit “death qualification” under the due process clause of our State constitution (Ill. Const. 1970, art. I, § 2). We find no persuasive reason to do so.
Even prior to McCree, on several occasions this court rejected the argument that qualification of prospective jurors pursuant to Witherspoon results in a conviction-prone jury, denying the accused a fair trial. (See People v. Collins (1985), 106 Ill. 2d 237, 278 (and cases cited).) Shortly after McCree was decided, this court stated that upon independent consideration of the matter, the court perceived no State constitutional basis for departing from its prior cases and the United States Supreme Court’s position on the same issue. (People v. Sanchez (1986), 115 Ill. 2d 238, 266.) Accordingly, defendant’s contention that "death qualification” violates our State constitution is meritless.
F. Death Eligibility Under the Multiple Murders Factor Based on Subsequent Murders
Defendant was found eligible for the death penalty under the multiple-murder eligibility factor (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)(3)) on the basis of convictions for other murders which occurred after the murder of Vernita Wheat. Defendant argues that because at the time of the Vernita Wheat murder the other murders had not ;ret been committed, he had no notice of his eligibility for the death penalty, and imposition of the death penalty violates due process. In support of this argument, defendant relies exclusively on Bouie v. City of Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697. In Bouie, the Court recited the venerable due process axiom that a criminal statute must be " 'sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’ ” (Bouie, 378 U.S. at 351, 12 L. Ed. 2d at 898, 84 S. Ct. at 1701, quoting Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127.) We fail to see how that principle was offended here. The relevant statutory provision placed defendant on notice that after the murder of Vernita Wheat, the commission of additional murders in Illinois or another jurisdiction would make him eligible for the death penalty. We further note that this court has previously held that the multiple-murder eligibility factor does not violate due process simply because eligibility may be based on conduct occurring after the murder for which punishment is imposed. See People ex rel. Daley v. Strayhorn (1988), 121 Ill. 2d 470, 483.
In a related point, defendant notes that in People v. Albanese (1984), 104 Ill. 2d 504, this court held for the first time that a defendant could be found eligible for the death penalty under the multiple-murder factor on the basis of murders committed after the murder for which the defendant was being sentenced. Defendant contends that because Albanese was decided after the Vernita Wheat murder, he did not have notice of this interpretation of the statutory eligibility factor. In Bouie, the Court held that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law” and is forbidden by the due process clause. (Bouie, 378 U.S. at 353-54, 12 L. Ed. 2d at 899-900, 84 S. Ct. at 1702-03.) However, Albanese hardly represents an "unforeseeable judicial enlargement” of the multiple-murder eligibility factor. Instead, Albanese simply held that under the plain language of the statute, eligibility pursuant to the multiple-murder factor does not depend on the sequence of the murders. (Albanese, 104 Ill. 2d at 533-34.) A judicial decision which merely interprets a statute in accordance with its plain and unambiguous language does not operate like an ex post facto law. Defendant’s argument is without merit.
G. Evidence of the Death Penalty’s Lack of a Deterrent Effect
Defendant contends that the trial court erred in granting the State’s motion in limine barring defendant from introducing evidence that the death penalty has proved ineffective as a deterrent to crime. In People v. Williams (1983), 97 Ill. 2d 252, 301, this court held that such testimony is improper, noting that "[a]rguments against the death penalty in general and not containing evidence in mitigation are inadmissible.” Defendant seeks to distinguish Williams, noting in that case the witnesses whose testimony was barred would have testified as to their beliefs about the unwisdom and immorality of the death penalty and the repellant nature of an execution in the electric chair, in addition to the death penalty’s lack of deterrence. However, this court concluded that none of this evidence was admissible. Accordingly, defendant’s argument is without merit.
H. Constitutionally Infirm Jury Instructions at Sentencing
Citing People ex rel. Free v. Peters (N.D. Ill. 1992), 806 F. Supp. 705, defendant argues that the instructions to the jury at sentencing result in the arbitrary and unguided imposition of the death penalty in violation of the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV). As defendant acknowledges, the United States Court of Appeals for the Seventh Circuit reversed the district court decision in Free, concluding that the jury instructions are not constitutionally infirm. (Free v. Peters (7th Cir. 1993), 12 F.3d 700.) This court has previously endorsed the Seventh Circuit’s reasoning on this question. (People v. Franklin (1995), 167 Ill. 2d 1, 29; People v. Kokoraleis (1994), 159 Ill. 2d 325, 333-34; see also People v. Thomas (1995), 164 Ill. 2d 410, 432.) While defendant urges us to reconsider the question, we see no persuasive reason to depart from our holdings. The circuit court properly dismissed defendant’s post-conviction claims alleging unconstitutional jury instructions at sentencing.
I. Natural Life Instruction
Because of defendant’s multiple murder convictions, the only sentencing alternative to the death penalty was natural life imprisonment. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(1).) Defendant contends that the trial court erred in refusing his tendered instruction informing the jury that if the death penalty were not imposed, he would receive a mandatory natural life sentence. Instead, the jury was simply instructed that if defendant were not sentenced to death the trial court would sentence him to a term of imprisonment. See Illinois Pattern Jury Instructions, Criminal, No. 7A.01 (2d ed. 1981).
This court addressed the same issue in defendant’s direct appeal. (People v. Coleman (1989), 129 Ill. 2d 321, 348-49.) The court noted that in People v. Gacho (1988), 122 Ill. 2d 221, a prospective rule was announced requiring jurors to be informed of the mandatory natural life sentence for offenders convicted of multiple murders who do not receive the death penalty. However, because defendant’s sentencing occurred prior to the decision in Gacho, it did not apply to his case. (Coleman, 129 Ill. 2d at 348.) This court further held that the Gacho rule was not of constitutional dimension, and thus rejected the argument that under the principles of Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, Gacho applied retroactively to cases pending on direct review when it was announced. (Coleman, 129 Ill. 2d at 349.) Defendant currently attempts to offer slightly different rationales for applying Gacho retroactively. However, because the issue has already been decided, the doctrine of res judicata precludes reconsideration of the issue. See People v. Franklin (1995), 167 Ill. 2d 1, 23.
Defendant also cites the United States Supreme Court’s decision in Simmons v. South Carolina (1994), 512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187, in support of his claim that the jury should have been instructed on mandatory natural life imprisonment for multiple murders. In Simmons, the Court held that if the defendant’s future dangerousness is at issue and under State law the only sentencing alternative to the death penalty is life imprisonment without parole, due process requires that the sentencing jury be accurately informed of that alternative.
This court has yet to decide whether Simmons applies retroactively in post-conviction proceedings where the defendant’s conviction and sentence were affirmed on direct review before Simmons was decided. (See Franklin, 167 Ill. 2d at 24-25.) Assuming for the sake of argument that Simmons does apply retroactively, defendant’s reliance on Simmons is misplaced. In Simmons, the prosecution specifically raised the issue of the defendant’s future dangerousness during closing argument by asking the jury "what to do with [the defendant] now that he is in our midst” and by stating that a death sentence would be "a response of society to someone who is a threat. Your verdict will be an act of self-defense.” (Simmons, 512 U.S. at 157, 129 L. Ed. 2d at 139, 114 S. Ct. at 2190-91.) The Court held, in essence, that due process entitled the defendant to inform the jury that if sentenced to life imprisonment he would never be released on parole in order to rebut the prosecution’s argument that, if not executed, defendant would pose a threat to society. (Simmons, 512 U.S. at 163, 129 L. Ed. 2d at 142, 114 S. Ct. at 2193 (plurality opinion); Simmons, 512 U.S. at 178, 129 L. Ed. 2d at 151, 114 S. Ct. at 2201 (O’Connor, J., concurring, joined by Rehnquist, C.J., and Kennedy, J.).) We note that no majority opinion was delivered in Simmons. The reasoning of the plurality opinion might arguably apply in situations where the State does not argue future dangerousness. However, only a more limited rule applicable where the prosecution specifically argues future dangerousness received the support of a majority of the members of the Court. (See Note, Simmons v. South Carolina: Safeguarding a Capital Defendant’s Right to Fair Sentencing, 26 Loy. U. Chi. L.J. 511, 539-40 (1995).) Here, unlike Simmons, the State did not rely on future dangerousness in its argument to the jury as a reason for imposition of the death penalty. Thus Simmons does not apply.
Defendant appears to acknowledge that the prosecution did not raise the issue of future dangerousness. However, defendant maintains that the pre-Gacho instruction given here itself raises the issue of future dangerousness. We disagree. While the instruction may not dispel concerns of future dangerousness as effectively as a Gacho instruction, neither does the instruction raise the issue of future dangerousness in the sense contemplated by Simmons. Defendant also contends that the State in effect misled the jury about sentencing alternatives. During his closing argument at the aggravation/mitigation stage of sentencing, defendant intimated that if the death penalty was not imposed, he would receive a life sentence. The trial court sustained the State’s objection to these remarks. Even if the State’s objection could somehow be viewed as misleading, defendant’s argument would fail. Citing a footnote in the plurality opinion, defendant contends that Simmons embraces a general principle that the prosecutor may not mislead the jury. In context, the comments in the footnote to which defendant refers are clearly limited to cases where the prosecution has placed future dangerousness at issue. (Simmons, 512 U.S. at 165 n.5, 129 L. Ed. 2d at 143 n.5, 114 S. Ct. at 2194 n.5 ("[T]he State may not mislead the jury by concealing accurate information about the defendant’s parole ineligibility. The Due Process Clause will not tolerate placing a capital defendant in a straitjacket by barring him from rebutting the prosecution’s arguments of future dangerousness with the fact that he is ineligible for parole under state law”).) Thus Simmons does not support defendant’s claim that he was constitutionally entitled to have the jury instructed on the mandatory natural life sentence for multiple murder convictions.
J. Reliability of the Sentencing Phase Verdict
Defendant claims that the trial judge erred in allowing the jury to deliberate on whether the death penalty should be imposed without first hearing mitigating evidence of his background and mental or emotional condition. According to defendant the absence of such evidence undermined the reliability of his sentence in contravention of the guarantees of the eighth amendment.
Courts in other jurisdictions have considered and rejected the argument that the eighth amendment requires that mitigating evidence must somehow be presented on a defendant’s behalf notwithstanding the defendant’s choice to refrain from introducing it. In Wallace v. State (Okla. Crim. App. 1995), 893 P.2d 504, the defendant argued that the eighth amendment requires the sentencer to consider mitigating evidence to reach a rational and individualized determination of the appropriate sentence and when the defendant refused to present such evidence the death sentence was imposed in an arbitrary and unreliable manner. Quoting from the decision of the Supreme Court of California in People v. Bloom (1989), 48 Cal. 3d 1194, 774 P.2d 698, 259 Cal. Rptr. 669, the Wallace court responded:
" '[T]he required reliability is attained when the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. A judgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendment reliability requirements.’ ” (Emphasis added.) (Wallace, 893 P.2d at 511, quoting Bloom, 48 Cal. 3d at 1228, 774 P.2d at 719, 259 Cal. Rptr. at 690.)
(Accord Silagy v. Peters (7th Cir. 1991), 905 F.2d 986, 1008.) We agree and find this reasoning consistent with language in decisions of this court and the United States Supreme Court indicating that the eighth amendment is complied with where the defendant has the opportunity to present mitigating evidence. (See People v. Silagy (1984), 101 Ill. 2d 147, 181 ("Society’s interest in the proper administration of justice is preserved by giving a defendant the right freely to present evidence in mitigation”); Wallace, 893 P.2d at 510 n.4 (and cases cited).) In the case at bar, defendant did in fact present some mitigating evidence relating to his desire to find peace with God. Defendant now claims that other mitigating evidence should have been introduced, but because he was afforded a complete opportunity to present mitigating evidence as he saw fit, and because rigorous procedural standards were adhered to in connection with sentencing, defendant’s sentence is not constitutionally unreliable.
K. Racial Discrimination in Sequence of Prosecutions
Defendant alleges in his post-conviction petition that representatives of the State met with prosecutors in other jurisdictions to determine the sequence of prosecutions arising from defendant’s alleged multistate crime spree, and that as a result it was decided that defendant would first be tried for the murder of Marlene Walters, the only white victim among the several alleged murder victims. While defendant contends that this decision violated his constitutional rights, he has failed to cite any pertinent authority or advance any meaningful argument or analysis in support of this contention. Accordingly, the issue is waived. See People v. Patterson (1992), 154 Ill. 2d 414, 472.
L. Constitutionality of the Death Penalty
Defendant finally urges us to abolish the death penalty altogether. In Gregg v. Georgia (1976), 428 U.S. 153, 187, 49 L. Ed. 2d 859, 882-83, 96 S. Ct. 2909, 2931-32, the United States Supreme Court rejected the proposition that imposition of the death penalty for the crime of murder is, under all circumstances, cruel and unusual punishment under the eighth and fourteenth amendments to the United States Constitution. Defendant argues that Gregg should be "overruled.” Defendant also contends that in view of the international trend disfavoring the death penalty, capital punishment is contrary to evolving standards of due process. Defendant has failed to cite any pertinent authority or advance any meaningful analysis in support of this contention. As presented, this argument and defendant’s related assertion that the death penalty is violative of the United Nations Charter are without merit.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Lake County dismissing or denying each of defendant’s post-conviction claims is affirmed. The clerk of this court is directed to enter an order setting Tuesday, January 23, 1996, as the date on which the sentence of death, entered in the circuit court of Lake County, is to be carried out. Defendant shall be executed in the manner provided by law. (Ill. Rev. Stat. 1991, ch. 38, par. 119—5.) The clerk of this court shall send a certified copy of the mandate to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution where defendant is now confined.
Affirmed.
[OPINION BY JUSTICE MILLER, type=concurrence]
JUSTICE MILLER,
concurring:
I concur in the judgment of the court, and I join much of the court’s opinion. Unlike the majority, however, I would reject the defendant’s claim of ineffective assistance of counsel at the second stage of the sentencing hearing squarely on the ground that the defendant, acting pro se at that time, can make no claim that counsel was ineffective. See McKaskle v. Wiggins (1984), 465 U.S. 168, 177 n.8, 79 L. Ed. 2d 122, 133 n.8, 104 S. Ct. 944, 950 n.8; Faretta v. California (1975), 422 U.S. 806, 834 n.46, 45 L. Ed. 2d 562, 581 n.46, 95 S. Ct. 2525, 2541 n.46, People v. Gibson (1990), 136 Ill. 2d 362, 382.
Six days before trial, the defendant chose to proceed pro se. The two public defenders who had been representing the defendant were then appointed to act as standby counsel. Following the defendant’s conviction for murder and aggravated kidnapping, the State asked for a death penalty hearing. For the first stage of the sentencing hearing, the defendant requested the assistance of counsel, and the two public defenders represented him during that portion of the case. At the second stage of the hearing, however, the defendant once more waived the assistance of counsel, and the two public defenders again acted only as standby counsel. The only evidence in mitigation presented by the defendant was the testimony of a clergyman. (People v. Coleman (1989), 129 Ill. 2d 321, 331.) The defendant now contends that additional evidence in mitigation could have been introduced at the death penalty hearing.
To avoid the principle that a person proceeding pro se may not later complain that he received the ineffective assistance of counsel, the defendant attempts to couch the present argument in terms of the attorneys’ failure to adequately prepare for the sentencing hearing during the period when they were still representing him. Thus, the defendant states in his reply brief that counsel in this case "neglected to obtain [mitigating] evidence in a manner which would allow it to be introduced at the sentencing hearing and thereby prevented the Petitioner from having any chance of presenting such evidence after the Attorneys’ discharge.” Nowhere, however, does the defendant explain in what way the conduct of his former attorneys actually prevented him from introducing evidence in mitigation. This is not a case in which former counsel’s conduct later precluded a defendant, then pro se, from introducing evidence, presenting a motion, or doing anything else. Here, the defendant seeks merely to ¿void the consequences of his decision to represent himself during the second stage of the sentencing hearing.
To succeed on a claim of this nature, the defendant should be required to establish, at the least, that actions of the defense attorneys prior to their withdrawal from the case actually prevented the defendant from accomplishing something he would otherwise have been able to do while acting pro se. To suggest otherwise means that counsel not only must prepare, on the schedule they determine, the case they believe they will be presenting, but also must anticipate their eventual unemployment and do in advance whatever additional preparation the pro se defendant’s case will require.
Alton COLEMAN, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
No. 45S00-9203-PD-158.
Supreme Court of Indiana.
Dec. 29, 1998.
Susan K. Carpenter, Public Defender, Kathleen Cleary, Robert E. Lancaster, Deputy Public Defenders, Indianapolis, for Appellant.
Jeffrey Modisett, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee.
Charles A. Asher, South Bend, for Amicus Curiae Indiana Association of Criminal Defense Lawyers.
[OPINION BY SHEPARD, Chief Justice. type=majority]
SHEPARD, Chief Justice.
A jury found Alton Coleman guilty of murder, attempted murder, and child molesting. Following the jury’s recommendation, the court sentenced Coleman to death. We affirmed on direct appeal. Coleman v. State, 558 N.E.2d 1059 (Ind.1990). Coleman filed a petition for post-conviction relief challenging his convictions and death sentence. Judge Richard J. Conroy denied the petition, and Coleman now appeals that ruling. We affirm.
Statement of Facts
Our earlier opinion summarizes the facts of Coleman’s crime:
In June 1984, Coleman and his companion Debra Brown approached two young girls in Gary. The girls were ten-year-old A.H. and her seven-year-old niece, Tamika Turk. They enticed the girls into a wooded area with a friendly offer of clothing. Once there, Coleman told the girls that he was going to play a game. He then took off Tamika Turk’s pink shirt, cut it into shreds with a pocket knife, and tied both girls’ hands, mouth and legs.
Tamika began crying. Coleman responded by stomping viciously on her face, chest and stomach with his foot. Afterward, Coleman and Brown carried Tamika away. Tamika’s body was later discovered with a piece of bed clothing tied around her neck.
Coleman next forced A.H. to perform oral sex on him and on Brown. While A.H. was performing oral sex on Brown, Coleman raped A.H. Finally, Coleman and Brown simultaneously strangled A.H. with their belts until she passed out. Incredibly, A.H. regained consciousness and walked out of the wooded area. A young woman and her mother noticed A.H., took her in, and eventually called an ambulance. At the hospital, doctors discovered cuts so deep in A.H.’s vaginal area that her intestines were protruding into her vagina.
Coleman, 558 N.E.2d at 1060-61.
I.Statement of the Issues
Coleman enumerates fourteen issues in this appeal. Some of those claims are barred by res judicata and some are waived. Of the remaining issues, we restate several and address them each. Coleman’s arguments fall under these main categories:
1. Whether Coleman received ineffective assistance of counsel (IAC) at trial;
2. Whether Coleman received ineffective assistance of appellate counsel;
3. Whether Coleman’s trial counsel suffered under an actual conflict of interest which adversely affected his performance;
4. Whether Coleman’s jury was exposed to extraneous influences during trial thereby violating Coleman’s right to a fair and impartial jury and his right to due process;
5. Whether the trial court erred in denying Coleman funds for an expert on eyewitness identification at trial;
6. Whether the trial court denied Coleman due process by not providing a competent mental health examination before Coleman’s decision not to testify;
7. Whether the trial court improperly instructed the jury;
8. Whether Magistrate T. Edward Page’s involvement in the proceedings denied Coleman his rights of due process, equal protection, and to a full and fair post-conviction hearing;
9. Whether the post-conviction court erred in refusing to hear Coleman’s arguments on systemic deficiencies in the Lake County Public Defender System;
10. Whether the trial court properly sentenced Coleman.
II.Petitioner’s Burdens in Post-Conviction Proceedings
Post-conviction procedures do not afford convicts the opportunity for a “super-appeal.” Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985) (citing Langley v. State, 266 Ind. 199, 210, 267 N.E.2d 538, 644 (1971)). Rather, they create a narrow remedy for subsequent collateral challenges to convictions. Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind.1993). Petitioners must establish their grounds for relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1, § 5. A petitioner appealing the denial of post-conviction relief, moreover, labors under a heavier burden:
On appeal [from the denial of post-conviction relief], petitioner stands in the position of one appealing from a negative judgment. In such cases, it is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law.
Fleenor v. State, 622 N.E.2d 140, 142 (Ind. 1993), cert. denied, 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994). Such a petitioner must show that the evidence, taken as a whole, “leads unerringly and unmistakenly to a conclusion opposite to that reached by the trial court.” Weatherford, 619 N.E.2d at 917; see Lowe v. State, 455 N.E.2d 1126 (Ind.1983).
In the present case, the post-conviction court entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1, § 6. When the post-conviction court enters such findings, the reviewing court “will affirm if the court’s findings are sufficient to support the judgment.” Lile v. State, 671 N.E.2d 1190, 1192 (Ind.Ct.App.1996); Neville v. State, 663 N.E.2d 169, 172 (Ind.Ct.App.1996). A post-conviction court’s findings and judgment will be reversed only if clearly erroneous; “to determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom.... ” Douglas v. State, 634 N.E.2d 811, 815 (Ind.Ct.App.1994). In short, the question before us is only “whether there is no way the court could have reached its decision.” Spranger v. State, 650 N.E.2d 1117, 1120 (Ind.1995).
III. Ineffective Assistance of Trial Counsel
The post-conviction court deemed Coleman’s claims of ineffective assistance of trial counsel waived for not having been raised on direct appeal. (P-C.R. at 1746.) As a general rule, “[t]he post-conviction relief process is open to the raising of issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time.” Hoivey v. State, 557 N.E.2d 1326, 1328 (Ind.1990). The post-conviction court held, and the State now argues, that the issue of ineffective assistance of trial counsel was available on direct appeal, and since it was not raised then, it was therefore waived. On behalf of Coleman, amicus argues that current Indiana case law regarding the proper time for an appellant to bring trial IAC claims presents a “Hobson’s choice.” {Amicus Br. at 13.) The gestalt of our law on the availability of such claims has recently been scrutinized. While this case has been under review, we have decided that claims of ineffective assistance of counsel may be presented for the first time in a petition for post-conviction relief. Woods v. State, 701 N.E.2d 1208 (Ind.1998). Nevertheless, Coleman does not prevail on this claim, because his offers of proof do not establish ineffective assistance of trial counsel as a matter of law, and the action of the trial court may be sustained “on any legal ground on the record.” Cain v. State, 261 Ind. 41, 45-46, 300 N.E.2d 89, 92 (1973).
A. Standard of Review for IAC Claims. To make a successful ineffective assistance claim, a convict must demonstrate both deficient performance and resulting prejudice. One must show his attorney’s performance “fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Douglas v. State, 663 N.E.2d 1153, 1154 (Ind.1996), and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.1996). Of course, “a different outcome but for counsel’s error will not constitute prejudice if the ultimate result reached was fair and reliable.” Smith v. State, 689 N.E.2d 1238, 1245 (Ind.1997) (quoting Games v. State, 684 N.E.2d 466, 469 (Ind.1997) (citing Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d 180)). We need not determine whether counsel’s performance was deficient before examining the prejudice suffered as a result of the alleged deficiencies. Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”).
Finally, counsel’s performance is presumed effective. Douglas, 663 N.E.2d at 1154; Butler v. State, 658 N.E.2d 72, 78 (Ind.1995). To be successful, Coleman’s offers of proof must rebut that presumption. They do not. We will review each of Coleman’s major arguments about ineffective assistance of trial counsel.
B. Mystery Hairs. After the crime was committed, a rape kit analysis, including a pubic combing, was performed on A.H. Sergeant Michael T. Oliver of the Indiana State Police analyzed the samples from the victim’s rape kit. The kit revealed two questioned hairs, one of which was retrieved from the pubic hair combing. Oliver’s first analysis of the hairs revealed that they did not belong to A.H. Oliver’s second analysis revealed that the hairs were also not Coleman’s or Brown’s. Both reports were provided to the defense. Oliver could not recall ever being contacted by Coleman’s defense counsel, nor was he subpoenaed to testify at trial. Defense counsel Lonnie Randolph vaguely recalled an assault kit having been prepared on A.H., though he could not recall whether he discussed the results with anyone at the State Police Laboratory.
Given the primary theory of the defense, that Coleman did not commit the crimes, we cannot think of a reason for counsel’s failure to present evidence that hairs were discovered in the rape kit which did not belong to Coleman or Brown. While one can imagine numerous explanations for the origins of the hairs that do not exculpate Coleman and/or Brown, we agree with appellant’s statements that “[tjhere can be no valid strategic reason for counsel’s failure to present this evidence in support of their theory....” (Appellant’s Br. at 42.) As such, counsel’s failure to present such evidence satisfies prong one of Strickland — performance falling below an objective standard of reasonableness. Coleman’s claim of ineffective assistance based on the failure to present the “mystery hair” evidence fails, however, under Strickland’s second prong — prejudice. Given the amount of evidence presented by the State against Coleman at trial, we are not persuaded that defense counsel’s failure to present the mystery hair evidence rendered his conviction fundamentally unfair or unreliable. Lockhart, 506 U.S. at 369, 113 S.Ct. 838.
C. Failure to Review Discovery. Coleman argues that his defense counsel failed to review the discovery material prior to trial, or did so in only a cursory fashion. (Appellant’s Br. at 44.) Coleman points to seven incidents in the trial transcript purporting to “show that counsel was not apprised of the evidence and discovery.” (Id.)
Of Coleman’s seven record citations on this point, three of them, (T.R. at 486, 1085, 1129-30), may be disposed of in short order. Our review of those citations reveals that when pieces of evidence were presented by the State at trial, only one of Coleman’s two trial attorneys had reviewed the item in discovery. Coleman fails to cite any case requiring each of a party’s attorneys to review every piece of discovery. Such a rule would undermine a major rationale for having more than one attorney in the first place — division of labor. As long as a member of the trial team was aware of a piece of evidence, an appellant has not established ineffective assistance by showing that not all were aware.
The other instances of Coleman’s trial attorneys’ alleged failure to review discovery items, (T.R. at 550, 1275-76, 1887, 1910-12), also do not amount to ineffective assistance, but for different reasons. Again assuming without deciding that Coleman’s trial counsel was deficient for failing to review several discovery items, we proceed to evaluate whether the alleged trial errors prejudiced Coleman, as “isolated instances of poor tactics ... do not necessarily amount to ineffectiveness of counsel.” Spranger, 650 N.E.2d at 1121.
Coleman complains that the failure to review these specific discovery items compromised the adversarial process at the guilt phase of the trial. (Appellant’s Br. at 40.) To prove resulting prejudice amounting to the deprivation of a fair trial, “the defendant must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result would have been different.” Spranger, 650 N.E.2d at 1121. Our review of the record leads us to conclude that these alleged failures neither compromised the adversarial process nor adversely impacted the outcome of Coleman’s trial.
D. Failure to Move for a Hair Analysis Expert. Coleman asserts that failure to request funds for an independent hair analysis expert constituted ineffective assistance. At trial, F.B.I. Special Agent Chester Blythe testified concerning a comparison between hair found at the scene and known hair samples taken from Debra Brown. Blythe testified that the hair samples were consistent with one another, and although hair analysis is not a positive means of identification, the likelihood of the hair found at the scene belonging to someone other than Brown was “very, very remote.” (T.R. at 1623.) Following the trial and sentencing, the State requested that Blythe perform further analysis on the hair. During additional testing, Blythe compared the hair from the scene to both A.H.’s and Brown’s hair, concluding finally that the origin of the hair from the scene could not be determined, in contrast to his original conclusion that the hair belonged to Brown.
Coleman now argues that “[h]ad counsel sought the assistance of a hair analysis expert, they would have learned that the hair’s origin could not be determined.” (Appellant’s Br. at 46.) We find much merit in the State’s response:
When a claim of ineffective assistance of counsel is based on counsel’s failure to object to the admission of evidence, the defendant must show that, had a proper objection been made, the objection would have been sustained. In like fashion, when the claim is based on the failure to request funds for an expert witness, the petition must show that had the request been made, it would have been granted.
(Appellee’s Br. at 17-18 (footnote omitted)). Coleman has made no showing that a motion for funds, had it been made, would have been granted. In fact, our standards governing court-appointed experts indicates that such a motion likely would have been denied.
As we have observed:
In Indiana, a criminal defendant is not constitutionally entitled, at public expense, to any type or number of expert [sic] he desires to support his case. Pittman v. State (1988), Ind., 528 N.E.2d 67, 71-72. A judge may authorize or appoint experts where necessary. Owen v. State (1979), 272 Ind. 122, 396 N.E.2d 376. The appointment of experts is left to the sound discretion of the trial court, Lowery v. State (1985), Ind., 478 N.E.2d 1214, 1220, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986), and only an abuse of that discretion will result in a reversal. Hough v. State (1990), Ind., 524 N.E.2d 1287, 1288. The defendant who requests that the court appoint an expert witness had the burden of demonstrating the need for the appointment. Burgans v. State, (1986), Ind., 500 N.E.2d 183, 186. A court must provide a defendant access to experts where it is clear that prejudice will otherwise result. Palmer v. State, (1985), Ind., 486 N.E.2d 477, 481.
Kennedy v. State, 578 N.E.2d 633, 639-40 (Ind.1991), cert. denied, 503 U.S. 921, 112 S.Ct. 1299, 117 L.Ed.2d 521. Other Indiana cases have also applied these standards. E.g., Harrison v. State, 644 N.E.2d 1243 (Ind.1995); James v. State, 613 N.E.2d 15 (Ind.1993); Bland v. State, 468 N.E.2d 1032 (Ind.1984).
One of the factors a court should consider when exercising its discretion on funding for experts is “whether the nature of the expert testimony involves precise physical measurements and chemical testing, the results of which were not subject to dispute.” Harrison, 644 N.E.2d at 1253 (citing Schultz v. State, 497 N.E.2d 531, 533-34 (Ind.1986)). Coleman’s case involves precisely this type of testing, ■ and Blythe’s conclusions about the origin of the hair were not in dispute until after the trial and sentencing. During the trial, Blythe stated the possibility of the hairs belonging to someone other than Brown to be “very, very remote.” (T.R. at 1623.) Coleman points to nothing to indicate that the trial court, reviewing Blythe’s opinion at the time of the trial, would have found any reason to order additional testing at public expense. We find no fault with trial counsel for failing to ask for that which hindsight tells us would have been helpful.
E. Eyewitness Identification Expert. Coleman says his trial attorneys were ineffective for failing to apprise themselves of relevant facts and law in them failed attempt to convince the court to provide funds for an expert on eyewitness identification. (Appellant’s Br. at 47-50.) Counsel did file a motion for funds, including a request to pay an expert on eyewitness identification. The motion requesting funds cited several U.S. Supreme Court cases, as well as several scholarly works on the issues surrounding and problems associated with eyewitness identification. At a hearing on that motion, the court concluded that the defense had failed to meet its burden to establish the need for such an expert.
At the time of Coleman’s trial, Indiana courts had not determined the admissibility of eyewitness expert testimony. See Farrell v. State, 622 N.E.2d 488, 494 (Ind.1993) (declining to rule on admissibility of eyewitness expert testimony on retrial, noting the pending Indiana Rules of Evidence to become effective January 1, 1994). Coleman now asserts that, given the unresolved nature of the admissibility issue, defense counsel should have offered case citations from other jurisdictions to guide the court. (Appellant’s Br. at 48.) We think it apparent the Attorney General is correct that “because counsel made the request, supported by appropriate citations to case authority, he did not commit deficient performance for failing to persuade the court to make a discretionary ruling allowing public payment for an eyewitness identification expert.” (Appellee’s Br. at 19.)
Furthermore, Coleman’s claims that the identification procedures “resulted in an unreliable identification” of Coleman by A.H., (Appellant’s Br. at 49), were addressed and rejected by this Court in the direct appeal. See Coleman, 558 N.E.2d at 1064-65. We decline to revisit the issue here.
F. IAC at the Penalty and Sentencing Phase. Coleman asserts that trial counsel failed to conduct a reasonable investigation into mitigating circumstances. The mitigating circumstances which Coleman claims were inadequately investigated include: evidence of his troubled childhood environment, evidence of his troubled family life, and evidence of a personality disorder and brain dysfunction. (Appellant’s Br. at 63-64, 64-72, 72-77.)
With regard to Coleman’s childhood environment and family life, we find it unnecessary to determine whether counsel was deficient for not having investigated these matters further than they did or not having presented this evidence. Assuming Coleman’s counsel was deficient in these regards, we have regarded this type of evidence to be of low mitigating weight, low enough to demonstrate lack of prejudice in Coleman’s ease. In Peterson v. State, 674 N.E.2d 528, 543 (Ind.1996), cert. pending, we stated:
Upon our independent review, we find evidence of the defendant’s difficult childhood, his emotional disturbance, his having consumed some alcohol at the time of the offense, his graduation from high school, his service in the Marines, his age, and his caring relationship with his child and her mother. The mitigating weight warranted for each of these considerations is in the low range, individually and cumulatively.
In fact, such evidence is occasionally declared not mitigating at all. See Loveless v. State, 642 N.E.2d 974, 977 (Ind.1994) (“[T]he trial court was not obligated to consider Appellant’s extremely dysfunctional family background and the impact it wrought on her as a mitigating circumstance when conducting sentencing.”); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind.1989) (“While such circumstances, particularly the defendant’s difficult experiences in childhood and adolescence, may have been sufficient to have been accorded recognition as a mitigating circumstance to be weighed, the trial court was not under an obligation to so find.”).
At the guilt phase of the trial, the State proved that Coleman stomped on the face, chest, and stomach of seven-year-old Tamika Turks until she stopped breathing. Coleman, 558 N.E.2d at 1060. The State proved that he raped and strangled ten-year-old A.H. in an attempt to kill her. Id. The State proved that Coleman had been convicted of two other murders in Ohio. Id. at 1065. Given these aggravating circumstances, even had his counsel presented the evidence of Coleman’s impoverishment and abuse, we see little likelihood the jury recommendation or trial judge’s sentence would have been different. The existence and availability of this body of proof is not “sufficient to undermine confidence in the outcome.” Averhart v. State, 614 N.E.2d 924, 931 (Ind.1993) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Coleman further claims that his trial counsel was ineffective for failing to present evidence that Coleman suffers from Borderline Personality Disorder (BPD) and Organic Brain Dysfunction. Coleman presented the evidence of these disorders at the post-conviction hearing. The court first found that the evidence presented by Coleman regarding the disorders would not have affected the trial outcome, stating:
The petitioner asserts that he has a diminished intelligence quotient, suffers from organic brain dysfunction, and suffers from a borderline personality disorder. He presented experts who testified that this was the fact of the matter. The state presented experts who concluded otherwise.... In this case, it is the conclusion of the trial court that the petitioner's] ... psychological composition would not have constituted a mitigating factor which would have outweighed the aggravating factors known to the jury and the trial court judge. In other words, had the judge or the jury known of the evidence which the petitioner presented at the hearing on the petition for post[-]conviction relief, it would not have made a difference to the ultimate outcome of the trial or sentencing hearing.
(P-C.R. at 1744 (emphasis added).) The court further found that Coleman does not in fact suffer from either disorder, stating:
After considering all of the evidence which was presented at the hearing on the petition, we conclude that the petitioner does not suffer from an organic brain dysfunction .... We also conclude that while the petitioner may have personality traits that point to a borderline personality disorder, he does not have a disorder of that significance.
(P-C.R. at 1745.)
As outlined in Part II above, a petitioner appealing from the denial of post-conviction relief labors under a heavy burden. We conclude that the evidence does not lead “unerringly and unmistakenly to a conclusion opposite to that reached by the trial court,” Weatherford, 619 N.E.2d at 917, and that “the court’s findings are sufficient to support the judgment,” Lile, 671 N.E.2d at 1192.
IV. Ineffective Assistance of Appellate Counsel
In addition to his claim of ineffective assistance of trial counsel, Coleman claims he was also denied the effective assistance of appellate counsel, based on counsel’s alleged failure to preserve, raise, and cogently argue meritorious issues. (Appellant’s Br. at 91.) The Strickland standard for reviewing claims of ineffective assistance applies to appellate counsel as well as trial counsel. Lowery, 640 N.E.2d at 1041.
A. Failure to Raise Trial IAC. Coleman argues that his appellate counsel was ineffective for failing to raise the issue of trial ineffectiveness. (Appellant’s Br. at 92.) As discussed above, Coleman did not receive ineffective assistance of trial counsel. Subsequently, his appellate counsel was not ineffective for failing to raise such a claim.
B. Failure to Challenge Trial Court’s Sentencing Order. Coleman argues that appellate counsel’s failure to challenge the findings of the trial court in sentencing Coleman constituted ineffective assistance. The trial court’s sentencing order was reviewed sua sponte by this Court on direct appeal. Coleman, 558 N.E.2d at 1065. The appropriateness of Coleman’s death sentence is res judicata, and appellate counsel was not ineffective for failing to challenge trial court’s findings.
C. Failure to Challenge Jury Instructions. Similarly, counsel was not ineffective for failing to challenge certain jury instructions, as the jury instructions given were appropriate. Jury instructions are largely within the discretion of the trial court, and we will review a court’s decisions on jury instructions only for an abuse of discretion. Nichols v. State, 591 N.E.2d 134 (Ind.1992). To constitute an abuse of discretion, the instruction given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. Reaves v. State, 586 N.E.2d 847 (Ind.1992).
Coleman notes the court did not instruct the jury on the definitions of “knowingly” or “intentionally.” (T.R. at 192-205, 215-36.) Generally, the use of a term of art in a jury instruction requires a further instruction explaining the legal definition of the word. Abercrombie v. State, 478 N.E.2d 1236 (Ind.1985).
As in Abercrombie, “the instructions as given did however inform the jury that guilt must rest upon a knowing or intentional state of mind.” 478 N.E.2d at 1239 (T.R. at 219-22). This Court stated in that ease:
Appellant did not tender a more complete instruction containing the definitions or otherwise raise the incompleteness of instructions to the trial court. No special prejudicial effect of the omission is identified. Under the circumstances we are not persuaded the error in instructions impinged a substantial right warranting reversal.
Abercrombie, 478 N.E.2d at 1239. Coleman fails to prove any special prejudicial effect resulting from the lack of instructions on “knowingly” or “intentionally.” Coleman’s appellate counsel was not ineffective for failing to raise this issue.
Coleman also claims that the instructions given the jury on the alternate ranges of punishments which could be imposed on Coleman were so grossly misleading as to constitute fundamental error. (Appellant’s Br. at 143.) The court instructed the jury on the possible sentences for murder, attempted murder, and child molesting. The court also instructed the jury on the possibility for the sentences to run consecutively or concurrently. Finally, the court instructed the jury on the possibility that a portion of the sentence could be suspended for good time credit. Our review of the instructions given by the trial court leads us to the conclusion that they were a correct and straightforward statement of the law.
Coleman says these instructions were misleading because there was little likelihood of a modest sentence being imposed. Such an argument to the jury would be proper. Counsel on direct appeal need not have taken the time to argue the instructions were improper on these grounds.
D. Failure to Challenge Denial of Funds for Eyeuntness Identification Expert. Coleman asserts that his appellate counsel was ineffective for failing to challenge the trial court’s denial of funds for an eyewitness identification expert. (Appellant’s Br. at 96.) As discussed above, when a claim of ineffective assistance is based on counsel’s failure to object, the defendant must show that had such an objection been made, it would likely have been sustained. Otherwise, one can not show resulting prejudice. Lowery, 640 N.E.2d at 1042. Similarly, when an ineffective assistance claim is based on failure to raise an issue on direct appeal, appellant must demonstrate a reasonable probability that had the issue been raised, the claim would have succeeded.
Coleman fails to demonstrate that a challenge to the denial of funds would have succeeded. We would have reviewed such a claim only for abuse of discretion. Harrison, 644 N.E.2d at 1253. As we noted above, at the time of Coleman’s trial, Indiana courts had not determined the admissibility of eyewitness expert testimony. See Farrell, 622 N.E.2d at 494. Although Coleman poses arguments as to why the trial court was wrong to deny him funds for the expert, (Appellant’s Br. at 124-33), he has not demonstrated a reasonable probability that had these arguments been raised, they likely would have succeeded on appeal. We conclude that appellate counsel did not provide ineffective assistance by taking a pass on this claim.
Y. Trial Counsel’s Alleged Conflict of Interest
Coleman claims that one of his trial attorneys, Lonnie Randolph, labored under an actual conflict of interest, depriving Coleman of his Sixth Amendment right to effective counsel. (Appellant’s Br. at 84.) “To prevail in this claim of conflict of interest, the defendant must demonstrate to the post-eon-viction court that trial counsel had an actual conflict of interest and that the conflict adversely affected counsel’s performance.” Spranger, 650 N.E.2d at 1124 (citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). If appellant succeeds in showing an actual conflict of interest adversely affecting performance, prejudice to the appellant will be presumed and ineffective assistance will be shown. The mere possibility of a conflict, however, is not sufficient to impugn a criminal conviction. Davidson v. State, 558 N.E.2d 1077 (Ind.1990).
First, Coleman fails to demonstrate that an actual conflict of interest existed.in this case. Second, assuming a potential conflict, Coleman fails to prove the conflict adversely affected the representation of his case.
A. Assignment of Book Rights. The fact that Randolph received an assignment of rights to Coleman’s life story does not present an actual conflict of interest in this case. According to the Indiana Code of Professional Responsibility in place at the time of Coleman’s trial, Disciplinary Rule 5-104:
(B) Prior to the conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.
While Coleman does not allege a specific date Randolph received the assignment of rights to Coleman’s story, Randolph testified “That didn’t occur until the Illinois situation,” (PC.R. at 2452), which followed the penalty phase of Coleman’s Indiana trial. Because the assignment of rights to Coleman’s life story did not occur until after Randolph’s representation was completed, no actual conflict of interest occurred.
Second, Coleman fails to demonstrate any adverse impact on his trial resulting from the alleged conflict. While he does claim that Randolph limited access to information about Coleman’s life story, (Appellant’s Br. at 88-90), he fails to substantiate his allegation. Coleman provides no evidence that Randolph’s alleged desire to keep the childhood information from becoming public knowledge “consciously or unconsciously influence[d Randolph’s] course of conduct” during trial. (Appellant’s Br. at 86.)
B. Interview with a Reporter. On May 3, 1986, the day after the sentencing hearing, a reporter interviewed Coleman at the Lake County Jail. Randolph was present. According to Randolph, Coleman insisted that Randolph be there. (P-C.R. at 2451.) Randolph testified that “the [reporter] paid me for my time.” (Id.) Coleman now claims that this payment from the reporter to Randolph indicates a conflict of interest adversely affecting Randolph’s representation. Rule 1.8(f) of the Indiana Rules of Professional Conduct sanctions such an arrangement within certain guidelines:
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client consents after consultation
(2) there is not interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by [the rules governing confidentiality].
Coleman has not demonstrated that the payment to Randolph by the reporter interfered with the attorney’s independent judgment, and given the timing of the interview, it is difficult to imagine any. Coleman fails to demonstrate that his attorney’s conflict of interest denied him effective assistance of counsel.
VI. Jury’s Exposure to Extraneous Influences
Coleman claims the jury in his trial was subjected to extraneous influences. (Appellant’s Br. at 97.) He complains that the jury saw a woman in the hallway of the courthouse, whom the bailiff identified to them as Debra Brown, after the trial court ruled that they should not view Brown in person. The post-conviction court determined that Coleman’s evidence did not establish that the jurors saw Brown in the hallway:
We are not persuaded that the jurors did see the petitioner’s codefendant in the hallway outside the courtroom during the trial. They apparently saw a woman that some of the jurors think, or think they were told by the bailiff, was the codefendant.
(P-C.R. at 1740.)
Our review of the evidence from the post-conviction hearing, particularly the affidavits of five of the jurors in Coleman’s trial, shows there was conflicting evidence. The evidence supports the post-conviction court’s judgment on this issue.
Moreover, even if the jury had viewed Brown, the State would have been able to overcome the presumption of prejudice that would have arisen. A presumption of prejudice arises when the jury is exposed to out-of-court communications with unauthorized persons. Conrad v. Tomlinson, 258 Ind. 115, 279 N.E.2d 546 (1972). The State sought to bring Brown into the courtroom and have her stand near Coleman for the purpose of comparing their relative heights and complexions to show how they match A.H.’s descriptions, which were partially comparative in nature. The defense objected on the grounds of relevance and possible prejudicial effect. The parties debated whether the potential prejudice could be avoided by various methods, but the record reflects that the court actually sustained the objection to the showing of Brown on grounds of relevance. (T.R. at 1519 (“I don’t see the probative value of her appearance here at all.”).)
The court’s primary reason for refusing to allow the State to show Brown was relevance, suggesting that it would not tend to prove or disprove any fact at issue. We conclude that, minimally, Coleman needs to demonstrate that the jury concluded something on the basis of a hallway view to warrant relief. He has not done so.
VII.Eyewitness Identification Expert, Mental Health Examination, and Jury Instructions
While we have addressed each of these issues collaterally in the context of Coleman’s ineffective assistance of counsel claims, Coleman seeks review for each of these issues independently on their merits. (Appellant’s Br. at 124-33, 133-39, 141-44.) Normally, the post-conviction relief process is only open to the raising of issues not known at the time of the original trial and appeal or somehow not available to the appellant at that time. Howey v. State, 557 N.E.2d 1326 (Ind.1990); Tope v. State, 477 N.E.2d 873 (Ind.1985). For an issue to be available for post-conviction relief, the issue must either be unavailable at direct appeal or be framed within the context of the post-conviction rules. Tope, 477 N.E.2d at 875. Otherwise, an issue shall be deemed waived.
In order to avoid the waiver of'his claims regarding an expert on eyewitness identification, mental health examinations, and jury instructions, Coleman alleges that the errors on these points were fundamental, and so denied him due process of law in violation of his constitutional rights. (Appellant’s Br. at 132, 133, 142.) In doing so, Coleman hopes to bring these issues under the rubric of the post-conviction rules. P-C.R. l(l)(a)(l). As we said of our fundamental error exception to the waiver rule in Canaan v. State, 683 N.E.2d 227, 236 (Ind.1997), it permits direct review of only the most blatant denials of elementary due process. Our review of these claims reveals nothing of a fundamental nature.
VIII.Magistrate Issues
A. Change of Judge Motion. Judge Richard Maroc initially presided over Coleman’s post-conviction proceeding. Coleman moved for and received a change of judge pursuant to Indiana Post-Conviction Rule l(4)(b). While a special judge was being selected, Magistrate T. Edward Page granted a motion for an extension of time made by Coleman. (Compare T.R. at 373 (date Conroy, J., assumed jurisdiction) with T.R. at 152 (date Page granted motion).) Coleman claims Page was acting under Judge Maroc’s authority. Thus, he argues, the grant of Coleman’s change of judge motion should have applied to Page as well, thus preventing Page from continuing to serve as magistrate in his case when Special Judge Conroy assumed jurisdiction.
The act under which Page received his authority stated, “The judges of the criminal division may appoint one (1) full-time magistrate under IC 33^-7. The magistrate continues in office until removed by the judges of the criminal division.” Ind.Code Ann. § 33-5-29.5-7.1 (West Supp.1994) (amended 1995). Magistrate Page serves all judges on the criminal division, not just Judge Maroc. Thus, even if Page did serve while Judge Maroc remained the judge of record in Coleman’s case, that would not disqualify Page from assisting the next judge who assumes the reigns.
B. Constitutionality of Lake County Magistrate Act. Coleman also argues that the Lake County magistrate provision, Ind. Code Ann. § 33-5-29.5-7.1 (West Supp.1994) (amended 1995), which created the position that Magistrate Page occupied in this case, violates multiple provisions of Indiana’s Constitution. Coleman failed to allege such constitutional infirmities before the post-conviction court, however, thus waiving them. See Bayh v. Indiana State Bldg. & Constr. Trades Council, 674 N.E.2d 176, 179 n. 3 (Ind.1996) (failure to present constitutional question at trial waives it from appellate consideration).
IX.Systemic Defects in Lake County Public Defender System
Coleman claims that systemic defects and unfavorable conditions in the Lake County public defender system were so extreme at the time of his trial that he necessarily received ineffective assistance of counsel. Because this same claim was raised by five other Lake County capital post-conviction petitioners, the court scheduled a single evi-dentiary hearing at which all six petitioners could present their evidence. (P-C.R. at 1929.) The court subsequently vacated the hearing, however, holding that this claim was not available for post-conviction review, and directed the petitioners to present their evidence as a Record of Excluded Evidence.
Although the court stated that the systemic defects claim was not cognizable in a post-conviction hearing, the court’s findings state that Coleman waived this claim. It reasoned that any such claim pertaining to trial counsel was available on direct appeal, and that the evidence as it related to appellate counsel was irrelevant because it indicated problems with the public defender system generally, rather than relating to anything specific to Coleman’s case. (P-C.R. at 1745b^46a.)
We conclude this issue was available for collateral review. First, rather than appearing in the trial record where appellate counsel could have found and raised the issue, the evidence allegedly showing systemic defects in the Lake County public defender system comes from extraneous sources, such as the testimony of former and current public defenders and experts on public defense systems and criminal defense generally. While claims available but unraised on direct appeal can be deemed waived from post-conviction review, claims based upon evidence unavailable on direct appeal are not waived and are appropriate for post-conviction review, see P-C.R. l(l)(a)(4). Second, as relates to appellate counsel, although the post-conviction court used the term “waiver,” it appears that the court actually determined the evidence irrelevant, and thus inadmissible. (See P-C.R. at 1746a-46b (finding the proposed testimony of witnesses to contain “nothing about the performance of the public defenders in this case” and the report of the expert to be “conclusionary reasoning” based upon “gossip” and “guesswork”).)
We recently addressed a claim similar to Coleman’s, pertaining to Marion County’s indigent defense system, in Games v. State, 684 N.E.2d 466 (Ind.1997). There we discussed “systemic defects” and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the seminal case on this issue, at length. See Games, 684 N.E.2d at 478-79. We stated, “Cronic provides a narrow ‘exception’ to the traditional Strickland two prong analysis. Under Cronic, certain circumstances will negate the Strickland requirement that a defendant establish both specific errors leading to deficient performance and actual prejudice.” Id. at 479. We noted that Cronic delineated three such circumstances, one of which arose when situations surrounding a lawyer’s representation are such that “ ‘the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial,’ ” id. (quoting Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039).
As the Supreme Court of Illinois observed when reviewing Coleman’s similar allegations against Illinois’ Lake County public defender office, see People v. Coleman, 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919, 936-37 (Ill.1995), examination of the examples given in the Cronic opinion sheds further light on what this dicta in Cronic really means. First, Cronic discusses Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as an example of a case in which circumstances surrounding a lawyer’s representation were so bad that ineffectiveness could be presumed without inquiry into the actual conduct of the trial. Cronic, 466 U.S. at 660-61, 104 S.Ct. 2039. In Powell,
[t]he defendants had been indicted for a highly publicized capital offense. Six days before trial, the trial judge appointed “all members of the bar” for purposes of arraignment. “Whether they would represent the defendants thereafter if no counsel appeared in their behalf, was a matter of speculation only, or, as the judge indicated, of mere anticipation on the part of the court.” [Powell, 287 U.S. at 56, 53 S.Ct. 55.] On the day of the trial, a lawyer from Tennessee appeared on behalf of persons “interested” in the defendants, but stated that he had not had an opportunity to prepare the case or to familiarize himself with local procedure, and therefore was unwilling to represent the defendants on such short notice. The court decided that the Tennessee lawyer would represent the defendants, with whatever help the local bar could provide.
Cronic, 466 U.S. at 660, 104 S.Ct. 2039.
Second, a Cronic footnote cites Chambers v. Maroney, 399 U.S. 42, 59, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (Harlan, J., concurring in part and dissenting in part); House v. Mayo, 324 U.S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739 (1945); White v. Ragen, 324 U.S. 760, 764, 65 S.Ct. 978, 89 L.Ed. 1348 (1945) (per curiam); and Ex parte Hawk, 321 U.S. 114, 115-16, 64 S.Ct. 448, 88 L.Ed. 572 (1944) (per curiam), as further exemplifying instances in which surrounding circumstances would make counsel constitutionally ineffective, per se. Cronic, 466 U.S. at 661 n. 28, 104 S.Ct. 2039. In Chambers Justice Harlan wrote, “Where counsel has no acquaintance with the facts of the case and no opportunity to plan a defense, the result is that the defendant is effectively denied his constitutional right to assistance of counsel.” Chambers, 399 U.S. at 59, 90 S.Ct. 1975 (Harlan, J., concurring and dissenting). White states “that it is a denial of the accused’s constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel.” 324 U.S. at 764, 65 S.Ct. 978. House involved a situation where “the trial court, without warning, and over petitioner’s protests, forced him to plead to the information without the aid and advice of his counsel, whose presence he requested.” 324 U.S. at 45-46, 65 S.Ct. 517. Ex parte Hawk involved allegations “that the state court forced [the petitioner] into trial for a capital offense, ... with such expedition as to deprive him of the effective assistance of counsel ... and that his conviction was based in part on the introduction at the trial of evidence known by the prosecution to be perjured....” 321 U.S. at 116-16, 321 U.S. 114.
“[T]he burden under Cronic is extremely heavy.” Games, 684 N.E.2d at 481. “[0]nly when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.” Cronic, 466 U.S. at 662, 104 S.Ct. 2039 (emphasis added). We think the Illinois Supreme Court was correct that such a presumption is justified only in cases involving circumstances of similar character and magnitude as those cited as examples in Cronic. See Coleman, 214 Ill.Dec. 212, 660 N.E.2d at 936.
A presumption of ineffectiveness is not justified from Coleman’s proposed evidence. Even if true, the evidence only indicates problems in Lake County’s public defender system generally. Coleman offers no evidence indicating that the alleged difficulties had any influence on his counsel specifically, which is the constant theme throughout the eases cited in Cronic as examples of per se prejudice, nor do we think deleterious influence can automatically be presumed.
First, Coleman’s Record of Excluded Evidence cited potential testimony from various Lake County public defenders who all testified about general conditions and personal complaints with Lake County’s system. For example, Coleman intended to call Daniel Toomey, who Coleman says would have provided the following testimony:
Because of the absence of accountability, some Trial Public Defenders spend as little time as possible preparing their cases and spend little or no time with their clients. There is no employment consequence to those Public Defenders for this conduct.
The lack of independence creates problems because Public Defenders are employees of the judges, who are less interested in quality representation than in keeping things moving.
... [C]ase loads are overwhelming and create the risk that any given case does not get nearly the attention it should. Until the promulgation of Rule 24 of the Rules of Criminal Procedure, there was no caseload reduction even while defending a death penalty case. Toomey often has 50 open felony eases.
The public defenders treat their private clients differently than they treat their indigent clients. This is a function of caseload. There are so many public defender cases that each one receives a little less attention than it otherwise would. Public defender cases suffer from late and often insufficient preparation.
(P-C.R. at 1388-89.) While this testimony, if true, surely indicates need for improvement in Lake County’s public defender system generally, there is no indication that Coleman’s counsel were affected by these deficiencies. Coleman fails to produce evidence showing that his counsel spent as little time as possible in preparing his case, that his counsel were affected by being appointed by the judge, that his counsels’ particular caseloads were so overloaded that they could not spend adequate time with Coleman’s case, or that his counsel treated him “differently” than they treated their private clients (if they had any). In • fact, while one of his trial attorneys, Cornell Collins, stated that he stopped doing public defender work generally because his assigned workload became unmanageable, (P-C.R. at 2465), he also said this about the work he and his co-counsel did for Coleman:
[W]e spent an inordinate amount of time working on [Coleman’s ease] together, separately, and away from families. And this was not a situation where we decided to do nothing, and on the day of the trial we picked a file up and went to court. We did a lot of work. And, in fact, I have no regrets. I don’t know about [my co-counsel], but I have no regrets about the work we put in here in this Coleman case, because it was substantial.
(P.C.R. at 2500.)
Second, Coleman’s Record of Excluded Evidence indicated that Coleman would have introduced testimony from Robert Spangen-berg, president of “The Spangenberg Group” which describes itself as a “nationally recognized research and consulting firm specializing in improving justice programs.” (P-C.R. at 1395.) Spangenberg’s testimony was to center around a report his group had written regarding its analysis of the Lake Superior Court’s public defender system between-1982 and 1992. The report concluded that the system “could not guarantee reasonably effective assistance of counsel as required under the Sixth Amendment in U.S. Supreme Court decisions.” (P-C.R. at 1398-99.) Spangenberg’s proposed testimony and report mention ways in which Lake County could improve its system and cites many authorities which support their recommendations, but there is no indication from the report that these alleged deficiencies affected Coleman’s lawyers specifically. The blueprints contained in documents like American Bar Association Criminal Justice Standards and the National Advisory Commission on Criminal Justice Standards and Goals are very helpful in structuring public defender services, but failure to follow them is not per se a violation of the Sixth Amendment.
Third, Coleman’s Record of Excluded Evidence indicates' that Coleman would have attempted to offer a record of testimony given by Dean Norman Lefstein of the Indiana University School of Law-Indianapolis, in a previous case challenging the Marion County public defender system. (See PC.R. at 1482.) In this testimony Dean Lef-stein concluded that that system “ought to be declared ... unconstitutional because of its failure to safeguard the rights of the accused.” (P-C.R. at 1557.) Even if testimony about the Marion County system could be relevant to Coleman’s claim, this evidence, like the rest, speaks in general terms without showing how the particular public defender system influenced the attorneys in that particular case. Indeed, Dean Lefstein acknowledged that his general view of the Marion County system did not necessarily describe how individual lawyers perform:
Q This system that we’ve got here in Marion County, not only theoretically but probably practically in many cases, it can provide excellent representation, can it not, for a particular criminal defendant of a particular case?
A I assume that it can.
Q A lawyer could do a heck of a job for somebody, tremendous job, could he not, or she not?
A I have to assume that that’s possible.
(P-C.R. at 1558.)
Because Coleman’s proposed evidence did not indicate that his attorneys’ representation of him was affected by the alleged defects within the system, he would have lost on this claim had it been properly adjudicated on its merits below. As the Supreme Court of Illinois said: “The general allegations in this case ... do not demonstrate circumstances of either the character or magnitude that would give rise to a per se ineffective assistance of counsel claim.” Coleman, 214 IIl.Dee. 212, 660 N.E.2d at 937.
X.Appropriateness of Sentence
Coleman argues that his death sentence was arbitrarily and capriciously imposed because the trial court found no mitigating circumstances, “although abundant mitigation was available and went unpresented.” (Appellant’s Br. at 149.) It is hard to see how a trial court could err in finding no mitigation to exist if such evidence is not presented to it. We also question the availability of “abundant mitigation.” In Coleman’s direct appeal we stated:
We are unable to find any matters pointing toward mitigation. The psychiatric evidence was that Coleman is mentally competent; it portrays his [sic] as a manipulative sociopath of above average intelligence. He neither played a minor part in these crimes, nor acted under the domination of another, nor with the consent of the victims. In short, there is nothing apparent to detract from his culpability. Unable to see any mitigation, we are satisfied that the aggravating circumstances justify the imposition of the death penalty.
Coleman, 558 N.E.2d at 1065. At his post-conviction hearing, Coleman has offered additional evidence of his troubled childhood and alleged personality and brain disorders. As for the former, we have already stated that even had this evidence been introduced at trial, we do not believe that it would have made a difference in the sentencing outcome. See supra part III.F. As for the latter, we have already noted conflicting expert testimony regarding whether or not Coleman truly suffered from these disorders, such that he did not overcome his burden in appealing the post-conviction court’s finding that no such disorders existed. See supra part III.F. Because of this conflicting evidence, and given the extreme gravity of the aggravators and strong evidence against him, the absence of this evidence from the trial court’s sentencing determination does not undermine the reliability of Coleman’s sentence.
XI.Waiver
We decline to address each of the post-conviction court’s waiver rulings. We have substantively reviewed Coleman’s arguments where we deemed it appropriate. We find that Coleman’s conviction and sentence were properly imposed, and his appeals were fundamentally sound.
XII.Conclusion
We affirm the judgment of the post-conviction court.
DICKSON, SULLIVAN, SELBY and BOEHM, JJ., concur.
The record of the post-conviction proceedings will he cited as P-C.R. The trial record will be cited as T.R.
The Indiana Association of Criminal Defense Lawyers filed a brief as Amicus Curiae in support of Coleman.
The post-conviction court's findings and conclusions reflect that Coleman sought to introduce the testimony of dozens of witnesses into evidence via affidavits and depositions in support of his IAC claims. (P-C.R. at 1743.) Because of the court's preliminary findings that the trial IAC claim was waived and the appellate IAC claim was meritless, the affidavits were accepted only as offers to prove. (Id.)
In its brief, the State summarizes the evidence presented against Coleman: [A.H.], one of Coleman's two victim’s, positively identified Coleman as the person who molested her and murdered Tamika, both in a photo array and again at trial ([T.]R. at [927,] 921). YoIand[a] Weems identified Coleman as being in Gary at the time of the crimes, helping him and Brown rent part of the Van Burén house where the bedsheet was found that matched the ligature used to strangle Tamika (T.R. 542, 553). T.B. met Coleman in a candy store in 1984, and observed Coleman walking near 39th and Broadway on the day of the killing (T.R. 1333, 1335). T.B. also testified that Coleman called Brown "Slim,” which is the name that [A.H.j’s attacker called his confederate during the attack (T.R. 1334). Following the attack, Coleman fled Lake County, never returning to the Van Burén house after it had been staked out by police (T.R. 1348). Finally, when Coleman was captured by police, he gave a false name (T.R. 1031). (Appellee's Br. at 20.)
With regard to a picture of the house in which Coleman was renting an apartment, one of Coleman's attorney’s, Collins, could not recall whether he had reviewed the photograph or not. (T.R. at 550.) The other two alleged deficiencies, (T.R. at 1887, 1910-12), actually concern the same "failure to discover.” Neither of Coleman's attorneys reviewed one digest of police reports before the State offered the digest at trial. When the defense objected to the admission of the reports, the trial court informed Coleman’s attorneys that "this digest is not discoverable under Indiana law.” (T.R. at 1912.) Coleman's attorneys maintained that they should at least have been informed of the existence of such a digest. (T.R. at 1911.)
The defense cited U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Elizabeth Loftus, Eyewitness Testimony (Harvard University Press 1979); Fredric D. Woocher, Note, Did Your Eyes Deceive You? Expert Psychological Testimony of the Unreliability of Eyewitness Identification, 103 Stan. L.Rev. 969 (1977). (T.R. at 92.)
The post-conviction court failed to address this issue in its findings. We thus choose to address it on the merits.
Indiana Disciplinary Rule 5-104 was in effect until January 1, 1987, when the Code was supplanted by the Indiana Rules of Professional Conduct.
Coleman provides no evidence to the contrary.
In support of his claim that Randolph limited access to his life story, Coleman points to a note written by Randolph, revealed in the post-conviction evidentiary hearing, reading "Rosie, please have Tonny -— get all of Alton Coleman’s letters from his file and put it in a separate manila folder by themselves and give to me for my private file. Thank you LMR.” (P-C.R. at 1653.) There was no evidence showing when this note was written. Without more, the existence of this note does not substantiate the claim that Randolph intentionally did not present evidence of Coleman's background.
Coleman offers evidence that Randolph deposited one hundred dollars in Coleman’s account at the Lake County jail two days after the interview in support of his conflict of interest claim. (P-C.R. at 4103-05.) Randolph admitted depositing the money but denied that the money was at all connected with the interview. (Id.) Coleman "suggests” the payment to Coleman is connected to the payment from the reporter to Randolph, but provides no evidence to that effect. (Appellant’s Br. at 87.)
None of the five jurors had the same recollection of the incident, nor did all of them recall seeing Brown at all. Juror T. testified, "One day, during the trial as the jury was leaving the jury room, there was an African-American woman in the hallway surrounded by guards. The bailiff immediately took us back into the jury room. The bailiff told the jury that the woman we had seen was Debra Brown.” (P-C.R. at 3913.) Juror R. testified, "One day during trial, as the jury was leaving the jury room, there was an African-American woman in the hall with guards around her. The bailiff immediately took us back into the jury room. Someone told us that the African-American woman was Debra Brown. I do not recall who told us that information. It could have been the judge or the bailiff." (P-C.R. at 3916.) Juror W. stated, "One day during trial, as the jury was coming to the court in the morning, there was an African-American woman in the jury room ... with no guards around her. The bailiff immediately took us out of the jury room. The bailiff told us that the African-American woman was Debra Brown.” (P-C.R. at 3919.) Juror D. testified, “One day during trial, as the jury was leaving the elevator, there was an African-American woman in the hall in handcuffs with a female guard. The bailiff immediately took us into the jury room. There was talk amongst the jurors that the African-American woman was possibly Alton Coleman's girlfriend, Debra Brown.” (P-C.R. at 3922.) Finally, Juror M. testified, “During the trial, I heard some of the jurors commenting about seeing an African-American woman, in the hall outside the jury room, with braids in her hair and they speculated it was Debra Brown who they believe was Alton Coleman’s girlfriend.” (P-C.R. at 3925.) .The debate about potential prejudice centered around the possibility of Brown blurting something out if she were brought into the courtroom, when her only purpose was as a physical point of comparison. (T.R. 1517-19, 1522.) Notably, there is no allegation by Coleman- that the jury was subjected to any verbal comments from Brown in the hall or the jury room. .Specifically, Coleman's petition alleged the following: (1) At the time of Coleman’s trial, each judge of the Lake County Superior Court selected the attorneys who served as public defenders in that court. (2) Expenditures necessary for the representation of indigent defendants at trial and on appeal are requested directly from the courts with payments from the funds apportioned by the courts. (3) The public defender budget is exclusively controlled by the courts. (4) The public defender support staff members are hired and compensated by the courts. The investigative staff performs duties for the courts as well as for the public defenders. (5) Public defenders initially hired by and assigned to a particular court are required to represent indigent defendants in other courtrooms and therefore before other Lake County Superior Court judges. This additional requirement does not exempt a public defender so assigned from the regular workload. (6) The Lake County judges exert control over both the trial and appellate public defenders in an “employment at will” arrangement with the courts such that additional duties and/or requirements of employment can be made without consideration to the adequacy of the representation to the indigent defendants. The public defenders are powerless to defend against the actions of the courts and, even if the court’s action causes the quality of representation to suffer, the public defenders are without recourse. (7)The appellate defenders in Lake County did not have the budget or access to investigators and could not undertake effective investigation into claims which require factual investigation. (P-C.R. at 1217 (emphasis omitted).)
William Benirschke, Alan Matheney, Phillip McCollum, Reynaldo Rondon, and Johnny Townsend. (P-C.R. at 1811-12.) Apparently, however, Matheney subsequently dropped this claim from his petition. (Compare T.R. at 1920-21 with T.R. at 1380.)
As in Games, we have rejected claims based on United States v. Cronic in two other cases, ones arising in Lake County. Brown v. State, 698 N.E.2d 1132, 1145 (Ind.1998); Roche v. State, 690 N.E.2d 1115, 1135 (Ind.1997).
Coleman writes, "In Cronic, the circumstances surrounding the representation were so bad that the United States Supreme Court ruled that the Strickland presumption of effectiveness should not apply. Rather, prejudice was presumed.” (Appellant’s Rep. Br. at 36.) Actually, the exact opposite is true. The Court held that "[tjhis case is not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel.... Respondent can therefore make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.” Cronic, 466 U.S. at 666, 104 S.Ct. 2039 (emphasis added).
In all of Cronic's examples, the surrounding circumstances clearly had an effect on the particular lawyer representing the particular defendant. In Powell the attorney was forced to proceed with a capital trial without any preparation, without ever meeting with the client or being attorney of record until the day of the trial, and without any familiarity with Alabama law or with local procedure. See Cronic, 466 U.S. at 660, 104 S.Ct. 2039. The citations to Chambers, White, and Ex parte Hawk all dealt with similar circumstances where the defendant was rushed to trial without giving his counsel any chance to prepare any form of defense, see 399 U.S. at 59, 90 S.Ct. 1975 (Harlan, J., concurring and dissenting); 324 U.S. at 764, 65 S.Ct. 978, 321 U.S. at 115-16, 64 S.Ct. 448; and House involved the denial of counsel altogether at a critical stage, see 324 U.S. at 764, 65 S.Ct. 978.
Two other categories of witness testimony also were proposed: competency of counsel and inadequacy of resources.' An example of the former is the statement, "Trial Public Defenders routinely failed to preserve issues for appeals,” (P-C.R. at 1388), and examples of the latter included the statements "There has never been a law clerk available,” “The law library materials are not current and are woefully inadequate,” and "Research must be completed outside of the office by individual counsel,” (P-C.R. at 1391). As for the first category, individual professional incompetence lends itself to a Strickland, and not a Cronic, analysis. As for the latter, the factors alleged are no different than circumstances faced by many solo practitioners who use resources such as the Valparaiso University School of Law library, which is approximately a thirty minute drive from the Crown Point courthouse. We fail to see how such allegations, even if true, necessitate the rare, extreme measure of circumventing Strickland and assuming prejudice.
Unlike issues involving difficult scientific or psychologic evidence, where experts are often needed to aid the finder of fact in making its determinations, Spangenberg offers his opinion on an issue that is a matter well within the expertise of judges. Whether or not an attorney could have provided constitutionally adequate assistance under the surrounding circumstances is a question readily answerable by judges, and is purely their decision to make within the parameters of appropriate law and precedent, regardless of what other legal scholars might think given a particular set of facts. While Spangenberg’s analysis is useful in aiding public defender offices in revamping their procedures and policies so they might provide better indigent assistance, such expertise does not make the Spangenberg Group any more qualified than judges to assess whether or not a system inherently and without exception causes all lawyers operating within it to provide constitutionally inadequate assistance.
Alton COLEMAN, Petitioner-Appellant, v. James RYAN, Illinois Attorney General, and Betty Mitchell, Director, Mansfield Ohio Correctional Facility, Respondents-Appellees.
No. 98-2784.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 28, 1999.
Decided Nov. 10, 1999.
Rehearing En Banc Denied Dec. 28, 1999.
Richard H. McLeese (argued), Decker & Associates, Chicago, IL, Anne E. Carlson, Northbrook, IL, for petitioner-appellant.
David H. Iskowich (argued), Office of the Attorney General Criminal Appeals Division, Chicago, IL, for respondent-appel-lee.
Before BAUER, FLAUM, and DIANE P. WOOD, Circuit Judges.
[OPINION BY FLAUM, Circuit Judge. type=majority]
FLAUM, Circuit Judge.
Petitioner, Alton Coleman, was convicted of first-degree murder and aggravated kidnapping by an Illinois jury and sentenced to death. The United States District Court for the Northern District of Illinois denied his petition for writ of habe-as corpus. For the reasons set forth below, we affirm the decision of the district court.
I. Background
An Illinois state court jury found Alton Coleman guilty of the murder and aggravated kidnapping of nine-year-old Vernita Wheat. Her decomposed body, with her feet and hands bound, had been discovered in an abandoned building. The cause of death was deemed to be ligature strangulation. Coleman represented himself at trial. At the time Coleman was convicted of the Wheat murder, he had already been convicted and sentenced to death on the basis of three subsequent murders, two in Ohio and one in Indiana.
Following Coleman’s Illinois conviction for the murder of Vernita Wheat, the court commenced a capital sentencing hearing. At the first stage of the hearing, the jury found that Coleman was eligible for the death penalty under two separate theories provided for by Illinois statute: (1) Coleman had been “convicted of murdering two or more individuals,” Ill.Rev.Stat.1983, ch. 38, para. 9-1(b)(3); and (2) the victim was under the age of twelve when she was killed and “the death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty,” Ill.Rev.Stat.1983, ch. 38, para. 9-1(b)(7). At the second stage of the capital sentencing hearing, the prosecution introduced evidence detailing Coleman’s crimes, including his prior convictions for other murders.
The Illinois jury sentenced Coleman to death, as well as to a term of fifteen years’ incarceration on the kidnapping conviction. On direct appeal, the Illinois Supreme Court affirmed Coleman’s convictions and sentences. Coleman then filed a petition pursuant to the Illinois Post-Conviction Hearing Act. Ill.Rev.Stat.1983, ch. 38, para. 122-1 et seq. The trial court denied Coleman’s post-conviction claims, and the Illinois Supreme Court affirmed the trial court’s denial.
Having exhausted his state court appeals, Coleman petitioned the United States District Court for the Northern District of Illinois for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Coleman’s petition on all grounds. Coleman now appeals from the final judgment of the district court denying his petition for writ of habeas corpus.
II. Analysis
Coleman attacks the validity of the Illinois death sentence. Under the 1996 Anti-terrorism and Effective Death Penalty Act amendments to Section 2254 (“AEDPA”), our role in this case is limited. In order to procure habeas relief on his legal claims under AEDPA’s standard, Coleman is required to show that an Illinois state court adjudication made on the merits of a federal constitutional question “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).
A.
Coleman’s first challenge to his conviction is based on the claim that the first capital-eligibility factor under which he was sentenced to death is unconstitutionally vague. That capital-eligibility factor provides for a possible death sentence when “the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill.Rev.Stat.1983, ch. 38, para. 9-l(b)(7). Coleman argues that this provision does not provide objective criteria for identifying the class of crimes for which the death penalty is appropriate, and fails to adequately constrain the discretion of jurors in imposing the death penalty. See Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (quoting Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion) (noting that capital-eligibility factors serve to “channel the sentencer’s discretion by clear and objective standards that provide specific and detailed guidance”)).
Petitioner bolsters his argument by citation to Supreme Court precedent holding unconstitutional language similar to that contained in the Illinois statute. In one case, the Court held the language “outrageously or wantonly vile, horrible or inhuman” to be unconstitutionally vague. Godfrey, 446 U.S. at 432, 100 S.Ct. 1759. In a similar holding, the Court found the phrase “especially heinous, atrocious, or cruel” to offend the constitutional requirement that capital-eligibility factors be sufficiently precise. Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Coleman contends that in light of these holdings, the terms “exceptionally brutal or heinous” and “indicative of wanton cruelty” are too subjective for the challenged provision to be upheld.
We acknowledge that the language used in this capital-eligibility factor raises a legitimate constitutional question. Nevertheless, like the district court, we decline to reach this issue and instead accept ar-guendo that the factor in question is unconstitutional. A final decision as to the constitutionality of this capital-eligibility factor should be left for a time when such a determination is necessary. Where, as here, the defendant’s eligibility for the death penalty is based on two independent factors, a finding that one factor satisfies constitutional mandates can be sufficient under appropriate circumstances for us to uphold the imposition of the death penalty. See Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). Before considering whether such circumstances exist here, we must first determine whether the Illinois courts’ application of the second challenged capital-eligibility factor is constitutional.
B.
Coleman argues that the application of the second of the two capital-eligibility factors used in- sentencing him to death contravenes the constitutional requirement of “fair notice.” The eligibility factor in dispute here provides:
A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if ...
... the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts....
Ill.Rev.Stat.1983, ch. 38, para. 9-1(b)(3). This factor was not applied to Coleman on the basis of a murder committed prior to the Vernita Wheat murder. Rather, it was applied on the basis of subsequent out-of-state murders for which Coleman was convicted prior to the Illinois trial.
Coleman argues that this application of the challenged eligibility factor did not provide constitutionally-required “fair notice.” “[T]he notice requirements of the Due Process Clause” require that a criminal law “clearly define the conduct prohibited” as well as “the punishment authorized.” United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). A statute is constitutionally defective if it “do[es] not state with sufficient clarity the consequences of violating a given criminal statute.” Id. In other words, a criminal statute must be “ ‘sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’” Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).
Our inquiry is confined to whether the Illinois Supreme Court’s decision on the notice issue involved an unreasonable application of clearly established Federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). The Illinois Supreme Court has interpreted section (b)(3), consistent with its plain meaning, to refer to prior “convictions,” not prior offenses. People v. Albanese, 104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d 1246, 1259 (1984). Although Albanese was decided after the offense for which the Illinois jury sentenced Coleman to death, the Illinois Supreme Court held in People v. Coleman, 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919, 939-40 (1995) (Coleman II), that the statute was sufficiently explicit to have placed Coleman “on notice that after the murder of Vernita Wheat, the commission of additional murders in Illinois or another jurisdiction would make him eligible for the death penalty.”
Coleman attacks this decision by the Illinois Supreme Court as unreasonable because it allows his death sentence to turn on after-the-fact decisions by out-of-state prosecutors in Indiana and Ohio to seek murder convictions against him. But such contingencies are not fatal to fair notice, nor are they unrelated to Coleman’s own conduct. At the time Coleman murdered Vernita Wheat, he was on notice that by doing so, he would be eligible for the death penalty if the sentencer found that he had previously been convicted of murder. We cannot conclude that the Illinois Supreme Court’s decision to that effect was unreasonable.
C.
While the Court assumes for the purposes of this appeal that the first capital-eligibility factor under which Coleman was found eligible for a death sentence is unconstitutionally vague, we conclude that the Illinois courts’ application of the second capital-eligibility factor is constitutional. Having done so, we must now proceed to consider whether the jury’s consideration of a presumed unconstitutional capital-eligibility factor so infected the sentencing process that the decision of the Illinois jury must be set aside. Our analysis depends in part on whether or not Illinois is, in capital punishment terminology, a “weighing” state.
The distinction between a “weighing” state and a “non-weighing” state is a functional one, and is best illustrated by the differences between the capital punishment sentencing schemes in Georgia and Mississippi. See Clemons v. Mississippi, 494 U.S. 738, 744-45, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). In Georgia, which is a non-weighing state, the jury is instructed not to give any particular weight to statutory aggravating factors once it has found the defendant eligible for the death penalty. See Zant v. Stephens, 462 U.S. 862, 872, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Rather, the jury is told to “ ‘take[ ] into consideration all circumstances before it from both the guilt-innocence and the sentence phases of trial.’ ” Id. (quoting the Georgia Supreme Court). By contrast, in a weighing state like Mississippi, once a defendant has been found eligible for the death penalty the jury is instructed to weigh only the statutory aggravating factors against the mitigating evidence in determining whether a death sentence is appropriate. See Clemons, 494 U.S. at 745, 110 S.Ct. 1441. It is this exclusive focus on statutory aggravating factors that characterizes a weighing state, as opposed to the more sweeping evidentiary consideration undertaken by juries in nonweighing states. See id.; Williams v. Cain, 125 F.3d 269, 283 (5th Cir.1997) (noting that a weighing state requires the jury “to focus only on the statutory aggravating factor[s]”) (emphasis added). Whether Illinois is a weighing or non-weighing jurisdiction can only be determined by a careful consideration of the state’s capital punishment sentencing scheme.
Illinois conducts its capital sentencing hearings in two stages: the capital-eligibility stage and the sentencing stage. In the first stage, the jury determines whether the defendant is eligible for the death penalty. In order to find that the defendant is eligible for a death sentence, the jury must unanimously determine that the defendant is over eighteen years of age, and that at least one of ten enumerated aggravating factors is present. Ill.Rev.Stat.1983, ch. 38, para. 9-1(b). If an aggravating factor is deemed to apply, the jury then proceeds to “consider aggravating and mitigating factors as instructed by the court and ... determine whether the sentence of death shall be imposed.” Ill.Rev.Stat.1983, ch. 38, para. 9-1(g). In making its determination as to the death sentence, the jury considers, but is not limited to, aggravating and mitigating factors enumerated by statute. Ill.Rev.Stat.1983, ch. 38, para. 9-1(e). “If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.” Ill.Rev.Stat.1983, ch. 38, para. 9-1(g).
Coleman argues that the jury’s balancing of aggravating and mitigating factors, as described above, makes Illinois a weighing state. See Morgan v. Illinois, 504 U.S. 719, 721-22, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (describing the “balance” of aggravating and mitigating factors that occurs at the second stage of an Illinois capital sentencing hearing). We cannot accept this analysis. The distinction between a weighing and non-weighing state in capital punishment terms is a functional one, and the mere use of the word “weighing” to describe the process of balancing aggravating and mitigating factors is not sufficient to make Illinois a weighing state. See Williams v. Calderon, 52 F.3d 1465, 1477 (9th Cir.1995) (explaining that the distinction between weighing and non-weighing states does not turn on the use of the word “weighing” to describe a state’s capital punishment sentencing scheme); see also Stringer v. Black, 503 U.S. 222, 231, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (“[T]he difference between a weighing State and a nonweighing State is not one of ‘semantics.’ ”). As we noted above, the key element of a capital punishment scheme in a weighing state is the exclusive use of statutory aggravating factors when balancing against mitigating considerations during the second stage of the capital sentencing hearing, as distinct from the more general balance of aggravating and mitigating factors that occurs in non-weighing states. See Cain, 125 F.3d at 283.
The definitive classification of Illinois as a weighing or non-weighing state is a question for Illinois courts. Hampton v. Page, 103 F.3d 1338, 1342 (7th Cir.1997). While in the past we noted that Illinois had yet to attach “a label — in bold letters — to its capital sentencing scheme,” we also stated that the Illinois Supreme Court had not remained entirely silent on the matter. Id. Even at that time, the Illinois Supreme Court had stated that “Illinois has a non-weighing statutory scheme to determine if someone is eligible for the death penalty.” People v. Todd, 154 Ill.2d 57, 180 Ill.Dec. 676, 607 N.E.2d 1189, 1198 (1992). Recently, the Illinois Supreme Court confirmed this conclusion by unequivocally declaring that “Illinois is a non-weighing state.” People v. Shaw, 186 Ill.2d 301, 239 Ill.Dec. 311, 713 N.E.2d 1161, 1182 (1999) (citing 720 ILCS § 5/91 (c) (West 1996)). We are not free to ignore the Illinois Supreme Court’s interpretation of Illinois law, and we therefore proceed to analyze Coleman’s claim in light of our understanding that Illinois is a non-weighing state. See Stringer, 503 U.S. at 235, 112 S.Ct. 1130.
The determination that Illinois is a non-weighing state has significant implications for our review of this case. As opposed to the situation in a weighing state, where invalid statutory aggravating factors serve to allow additional evidence to erroneously come before the jury, the jury in this case properly considered the way in which Vernita Wheat was killed. Even if the manner in which Vernita Wheat was killed should not have come before the jury as a statutory aggravating factor, the circumstances surrounding her death could have been introduced by the prosecution as additional aggravating evidence. In such a circumstance there is no constitutional violation “[a]ssuming a determination by the state appellate court that the invalid factor would not have made a difference as to the jury’s determination.” Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). The Illinois Supreme Court made precisely that determination when it found that the jury’s reliance on the first capital-eligibility factor, “even if [it] was improper, did not affect its finding that the defendant was eligible for the death penalty.” People v. Coleman, 544 N.E.2d 330, 342 (1989). In light of this conclusion by the Illinois Supreme Court, we find no constitutional violation in the jury’s consideration of an assumed invalid statutory aggravating factor, nor do we find any error in the district court’s adjudication of the issue.
D.
Lastly, Coleman argues that the district court erred in denying habeas relief on the claim that he was not competent to waive counsel. After waiving his right to counsel, Coleman represented himself at the capital murder trial and at the second stage of the capital sentencing hearing; he was represented by counsel only at the first stage of the sentencing hearing. The state post-conviction court conducted an evidentiary hearing on the issue and ruled that Coleman was competent to waive counsel. The Illinois Supreme Court affirmed the decision of the post-conviction court. Coleman II, 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919, 929 (Ill.1995). In its denial of Coleman’s habeas petition, the district court held that the Illinois courts’ treatment of this issue was not “unreasonable” for the purposes of 28 U.S.C. § 2254(d)(2).
AEDPA requires that a petitioner receive a Certificate of Appealability for each claim he seeks to appeal. 28 U.S.C. § 2253(c). Coleman does not dispute that he neither sought nor obtained a certificate for his competency claim. Rather, he argues that we should now grant the certificate under 28 U.S.C. § 2253(c)(2), which allows us to grant such a certificate and reach the merits of his claim only if he can make a “substantial showing of the denial of a constitutional right” warranting review.
Coleman has not made the requisite “substantial showing” in this case. We are satisfied with the district court’s holding that the Illinois Supreme Court correctly determined that a criminal defendant may only waive counsel if he is able to rationally understand the nature and purpose of the proceedings against him and assist in his defense, and that competence to waive counsel is measured by the same standard as competence to stand trial. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). We are also satisfied with the district court’s finding that the state court’s rejection of Coleman’s competency claim, under Godinez, was not unreasonable in light of the evidence. 28 U.S.C. § 2254(d)(2). For these reasons, we decline to grant Coleman the Certificate of Appealability he now requests.
III. Conclusion
In light of the foregoing, we Affirm the district court’s denial of the petition for writ of habeas corpus.
Affirmed.
For a detailed account of the manner and circumstances surrounding the death of Vernita Wheat, see the Illinois Supreme Court’s opinions in People v. Coleman, 129 Ill.2d 321, 135 Ill.Dec. 834, 544 N.E.2d 330 (1989) and People v. Coleman, 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919 (1995).
Alton COLEMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 45S00-9203-PD-158.
Supreme Court of Indiana.
Dec. 29, 2000.
Rehearing Denied March 20, 2001.
Susan K. Carpenter, Public Defender of Indiana, Kathleen Cleary, Deputy Public Defender, Robert E. Lancaster, Special Assistant to the Public Defender, Indianapolis, Indiana, Attorneys for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
[OPINION BY SHEPARD, Chief Justice. type=majority]
SHEPARD, Chief Justice.
Alton Coleman was last before us in a proceeding for post-conviction relief. We affirmed the trial court’s denial of relief, holding among other things that Coleman was not denied ineffective assistance of counsel. The U.S. Supreme Court granted certiorari, and remanded to us for reconsideration in light of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
On April 11, 1986, a jury found Alton Coleman guilty of murder, attempted murder and child molesting. Coleman and a companion lured two young girls into a wooded area, and bound and gagged them. Coleman v. State, 558 N.E.2d 1059, 1060 (Ind.1990) (“Coleman /”). They stomped and strangled the seven-year-old child to death after she began crying. They strangled and sexually brutalized the nine-year-old and left her for dead, though she survived. Id. Following the jury’s recommendation, the court sentenced Coleman to death. We affirmed on direct appeal. Id. Subsequently, we affirmed the denial of Coleman’s petition for post-conviction relief. Coleman v. State, 703 N.E.2d 1022 (Ind.1998) (“Coleman II”).
The U.S. Supreme Court granted certio-rari, Coleman v. Indiana, 529 U.S. 1085, 120 S.Ct. 1717, 146 L.Ed.2d 639 (2000), and remanded to this Court for reconsideration in light of Williams, 529 U.S. 362, 120 S.Ct. 1495, in which Williams claimed, as does Coleman, ineffective assistance of counsel (“IAC”). Williams, 529 U.S. at 367,120 S.Ct. at 1499.
In Williams, the U.S. Supreme Court reversed the Virginia Supreme Court and vacated Williams’ death sentence because Williams’ trial counsel failed to adequately investigate and present mitigating circumstances during the penalty phase of the trial. Icl. at 398-99, 120 S.Ct. at 1516. Applying the two-part IAC test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the U.S. Supreme Court held that this failure amounted to constitutionally deficient performance under the Sixth Amendment, and also prejudiced the defense to the point of depriving Williams of a fair trial with a reliable result. Id. at 389-90, 398-99, 120 S.Ct. at 1511, 1515.
The Williams opinion clarified the Court’s earlier decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), emphasizing that Lockhart did not modify the two-pronged Strickland analysis that focuses on (1) deficient performance by counsel and (2) resulting prejudice. Williams, 529 U.S. at 391-92, 120 S.Ct. at 1512. In Lockhart, the defendant sought relief based on his attorney’s failure to make an objection at his sentencing proceeding. Lockhart, 506 U.S. at 366, 113 S.Ct. 838. The objection was sustainable under ease law at the time of the proceeding, but that law was later overruled. The U.S. Supreme Court refused to grant the defendant a “windfall” based on fortuitous timing, and held that he had suffered no prejudice within the meaning of Strickland because the sentencing result was neither unreliable nor fundamentally unfair. Id. This set of circumstances was inapplicable in Williams, 529 U.S. at 393-94, 120 S.Ct. at 1513, and it is similarly inapplicable here.
The Williams Court clarified that the focal concern in Lockhart, i.e. whether the result of the proceeding was fundamentally fair, is not a discrete third prong of the IAC analysis. Williams, 529 U.S. at 391— 92, 120 S.Ct. at 1512. Rather, it enters into the determination of whether the likelihood of a different outcome qualifies as prejudice in the Strickland sense. Id.
In his petition for post-conviction relief, Coleman claimed ineffective assistance by both his trial and his appellate counsel. Coleman II, 703 N.E.2d at 1026. We rejected these claims, citing and applying the two-prong Strickland standard but also referring to the caveat in Lockhart that “a different outcome but for counsel’s error will not constitute prejudice if the ultimate result reached was fair and reliable.” Id. at 1028 (citations omitted). We now revisit the IAC issues raised by Coleman, applying the two-prong Strickland standard based on the most recent guidance provided in Williams. Our holdings on all other issues remain the same, and they stand.
The Standard of Review
As a threshold matter, we reject Coleman’s claim that he is entitled to de novo review because he presents mixed questions of law and fact. (Appellant’s Remand Br. at 4.) Coleman is correct that the U.S. Supreme Court said in Strickland that “both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” Strickland, 466 U.S. at 698,104 S.Ct. 2052. In Williams, however, the Court accepted that “[tjreating the prejudice inquiry as a mixed question of law and fact, the Virginia Supreme Court accepted the factual determination that available evidence in mitigation had not been presented at the trial.... ” Williams, 529 U.S. at 371, 120 S.Ct. at 1501.
We see nothing in Williams to alter the standard of review we apply to appeals of judgments denying post-conviction relief. We will reverse a negative judgment after a non-jury trial only if “the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court.” Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998) (citing Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind.1995)), cert. denied, 528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999). We accept findings of fact unless they are clearly erroneous, although we give conclusions of law no deference. Woods, 701 N.E.2d at 1210. The post-conviction court is the sole judge of the weight of evidence and credibility of witnesses. Id.
I. Ineffective Assistance of Trial Counsel
The post-conviction court held that Coleman’s claim of ineffective assistance of trial counsel was waived because it was not raised on direct appeal. Coleman II, 703 N.E.2d at 1027. Subsequently, however, we held in Woods v. State, 701 N.E.2d at 1220, that Sixth Amendment claims of ineffective assistance of trial counsel not raised on direct appeal may be raised in post-conviction proceedings. Therefore, in Coleman II, we addressed Coleman’s claim of ineffective assistance of trial counsel, but rejected it as a matter of law because Coleman’s offers of proof failed to establish any of his specific assertions. Coleman II, 703 N.E.2d at 1028. We revisit those conclusions below, applying the two-pronged Strickland analysis.
A. Failure to Investigate and Present Mitigating Evidence at the Penalty and Sentencing Phase. Coleman argues that his lawyer was ineffective in failing to present potentially mitigating evidence related to his troubled childhood environment and to his mental illness and personality disorder. (Appellant Remand Br. at 11-14.) On the latter issue, Coleman argues that he was prejudiced by his counsel’s failure to present evidence of his personality disorder and brain dysfunction. (Id. at 13-14.) The- post-conviction court, however, after hearing extensive evidence on both sides of the issue, found that Coleman does not suffer from either disorder. Coleman II, 703 N.E.2d at 1032, (P-C.R. at 1744-45). Applying a pure Strickland analysis, the post-conviction court concluded that, had this evidence been presented, it would not have made a difference to the outcome of the trial or sentencing. Coleman II, 703 N.E.2d at 1032, (P-C.R. at 1744). We agree that Coleman suffered no prejudice under Strickland from his counsel’s failure to argue mental defect or personality disorder as a mitigating factor in sentencing.
Coleman’s claim rests, then, on the mitigating evidence he offered at the post-conviction proceeding relating to his troubled childhood. As noted in Coleman II, 703 N.E.2d at 1031, this court has consistently held that evidence of a difficult childhood warrants little, if any, mitigating weight. See Peterson v. State, 674 N.E.2d 528, 543 (Ind.1996) (mitigating weight warranted by a difficult childhood is in the low range), cert. denied, 522 U.S. 1078, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998); Loveless v. State, 642 N.E.2d 974, 977 (Ind.1994) (some such evidence is occasionally declared not mitigating at all).
Nonetheless, it is certainly true that “evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J. concurring)). Childhood abuse and privation may, along with other mitigators, “influ-enee[] the jury’s appraisal of [] moral culpability.” Williams, 529 U.S. at 398, 120 S.Ct. at 1515.
Unlike Coleman’s claim of mental illness and personality disorder, we have no findings of fact from the post-conviction court regarding the evidence Coleman offered about the circumstances of his youth. At the post-conviction proceeding, Coleman offered testimony, inter alia, that his mother was a gambler and a prostitute who “starved, beat & hustled” her children. (P-C.R. at 3683, 3793-94.) Coleman spent most of his childhood in conditions of squalor, living with a grandmother who practiced voodoo and who told Coleman that his mother had discarded him in a trash can when he was born. (P-C.R. at 3717, 3772, 3681.) The grandmother verbally vilified and physically beat Coleman. (P-C.R. at 3760, 3684.) She addressed him by his widely-known nickname “Pissy” because Coleman had bedwetting problems through his early teens. (P-C.R. at 3684.) In summary, Coleman proffered evidence that he grew up neglected and abused.
We cannot effectively evaluate the credibility of this evidence from a cold record. We therefore assume its truth for purposes of analysis, to determine whether a remand for factual findings is necessary.
We begin with the second prong of Strickland, the issue of prejudice. The focus of this inquiry is whether, had Coleman’s counsel offered evidence of Coleman’s troubled childhood at the penalty phase of the trial, there is a reasonable probability that the result would have been different, i.e., that Coleman would have avoided a death sentence. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. We look to the factual circumstances in Williams for guidance in our assessment.
Omitted Mitigating Evidence. In Williams, counsel failed to present evidence
that Williams’ parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents’ incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents’ custody.
Williams, 529 U.S. at 395, 120 S.Ct. at 1514. In addition, Williams was “borderline mentally retarded” and did not advance beyond the sixth grade in school. Id. Williams’ counsel also failed to offer prison records and credible testimony showing that Williams thrived in a structured prison environment. Id.
Coleman, by contrast, has offered no evidence that he would be a model prisoner. In fact, he was charged with raping another inmate, and convicted of the lesser offense of battery, while he was incarcerated in 1976. (T.R. at 2620.) Nor has Coleman offered evidence of retardation. He attended school through the ninth grade, (P-C.R. at 4121), and in a competency hearing held prior to his trial, two court-appointed psychiatrists found Coleman to be above average in intelligence. (T.R. at 2631.) The only omitted mitigation evidence that Coleman offers is that he, like Williams, suffered a childhood “filled with abuse and privation.” Williams, 529 U.S. at 398, 120 S.Ct. at 1515; Coleman II, 703 N.E.2d at 1031.
Sentencing Evidence Presented. In Williams, the defendant struck his victim with a mattock and took a small sum of money from the victim’s wallet after the victim refused Williams’ loan request. Williams, 529 U.S. at 367-68, 120 S.Ct. at 1499. Williams was convicted and sentenced to death after he spontaneously confessed to the murder, which had been written off as a death from blood alcohol poisoning. Id. Williams expressed remorse, and cooperated with the police. Id. Unlike Williams, Coleman did not confess, did not express regret, and did not cooperate in the investigation.
In both Williams and Coleman, the State offered evidence of the defendants’ other crimes. Williams had previously committed armed robbery, burglary, grand larceny, arson, two auto thefts, and two violent assaults on elderly victims. Williams, 529 U.S. at 368-69, 120 S.Ct. at 1500. Coleman’s sentencing court similarly noted Coleman’s extensive record of violent criminal activity. This included convictions for robbery and battery, and pending charges for rape, child molesting, two kidnappings, multiple robberies and burglaries, three assaults, two attempted murders, and seven murders. (T.R. at 2614, 2621.) Also, unlike in Williams, Coleman had two prior murder convictions. (T.R. at 2419-20.)
As mitigating evidence, Williams’ counsel primarily emphasized that Williams had confessed and cooperated. Williams, 529 U.S. at 368-69, 120 S.Ct. at 1500. However, counsel then inexplicably conceded in closing argument that “it was difficult to find a reason why the jury should spare Williams’ life.” Id.
Coleman’s counsel presented no mitigating evidence, but relied instead on a general religious and moral argument against the death penalty and a request for mercy. (T.R. at 2522, 2570-71.) Coleman’s own statement at his sentencing hearing focused on the fairness of his trial, and ended with a request for mercy. (T.R. at 2582-87.)
Totality of the Evidence. The disposi-tive question here, as in Williams, is what effect the totality of the omitted mitigation evidence would have had on Coleman’s sentence. Williams, 529 U.S. at 396-98, 120 S.Ct. at 1515. In Williams, the U.S. Supreme Court noted that “[t]he circumstances recited in [Williams’] several confessions are consistent with the view that in each case his violent behavior was a compulsive reaction rather than' the product of cold-blooded premeditation.” Williams, 529 U.S. at 398, 120 S.Ct. at 1515-16. Coleman’s actions tell a different story. He and his companion lured two young girls into the woods to inflict egregious harm upon the children for their own sexual pleasure. Coleman neither confessed nor expressed regret for this predatory attack. Besides having committed a particularly atrocious crime, Coleman faced aggravating factors not present in Williams: two prior capital murder convictions.
Turning to the omitted mitigators, counsel in Williams could have pointed to three factors: childhood abuse and neglect, borderline mental retardation, and a record of successful incarceration. Coleman offers only one additional mitigator: a difficult childhood.
Because Williams “turned himself in, alerting police to a crime they otherwise would never have discovered,” Williams 529 U.S. at 398, 120 S.Ct. at 1515, Williams presented a much closer sentencing decision based on the original evidence presented. It is unsurprising, then, that when the Williams post-conviction judge (who had imposed the original sentence) considered the three omitted mitigating factors, that judge concluded that it was reasonably probable that this information would have tipped the scales against a death sentence. Id.
Here, with a predatory and unrepentant defendant who had two prior capital murder convictions and no mitigating circumstances, the sentencing decision was much more clear-cut. The jury returned its recommendation in favor of the death penalty within two hours (T.R. at 2539), and the trial court discussed at length the numerous compelling aggravators and lack of mitigating circumstances (T.R. at 2618-37).
Taking into consideration all the evidence, both presented and omitted, and our previous holdings that a difficult childhood carries little mitigating weight, we conclude that it is extremely unlikely that the sentencing result would have been different had Coleman’s trial counsel presented credible evidence of Coleman’s childhood abuse and neglect. Because we find no reasonable probability that Coleman would have avoided a death sentence based on the omitted evidence, Coleman’s claim of IAC at the penalty and sentencing phase of his trial fails under the second prong of Strickland.
B. Mystery Hairs. Coleman’s trial counsel failed to present evidence that two hairs in a rape kit containing evidence collected from one victim belonged to neither Coleman nor his co-defendant. Coleman II, 703 N.E.2d at 1028. We concluded in Coleman II that, although there was no apparent strategic reason for not presenting this evidence, it did not constitute prejudice in the Strickland sense because of the magnitude of other evidence pointing to Coleman’s guilt. Id. We also cited Lockhart and found that the failure did not render Coleman’s conviction unfair or unreliable. Id. at 1028-29. Under Strickland alone, we continue to hold that there was no reasonable probability that presentation of this evidence would have changed the result of the proceeding.
C. Other Claims. Coleman offers no argument on remand in support of his other claims of ineffective assistance of trial counsel. We take our earlier decisions on these contentions to be unaffected by the remand order, as his present lawyers apparently do.
II. Ineffective Assistance of Appellate Counsel
Coleman claimed IAC due to his appellate counsel’s failure to raise the issue of trial IAC and to challenge the trial court’s sentencing order. Coleman II, 703 N.E.2d at 1032. We allowed Coleman to raise the former issue in post-conviction review. Id. at 1027-28. We reviewed the latter issue sua sponte on direct appeal. Id. at 1032. Therefore, Coleman suffered no prejudice on these points.
Coleman also claimed appellate IAC for failure to challenge certain jury instructions and to challenge denial of funds for an eyewitness identification expert. Id. at 1032-33. The post-conviction trial court rejected these, along with all other, claims of appellate IAC, based purely on the two-pronged Strickland analysis. (P-C.R. at 1713-43.) We agreed in Coleman II, without reference to or consideration of Lock-hart, that Coleman failed to prove IAC on these issues. Coleman II, 703 N.E.2d at 1032-33.
Therefore, we continue to hold that Coleman was not denied effective assistance of appellate counsel in violation of the Sixth Amendment.
Conclusion
We affirm the judgment of the post-conviction court.
DICKSON, SULLIVAN, and BOEHM, JJ., concur.
RUCKER, J., not participating.
The U.S. Supreme Court’s order of remand directs us to Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). However, that case addresses issues not presented in Coleman II. We have assumed that the order intended to direct us to Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), decided the same day, which does deal with issues relevant to Coleman II.
See also Harrison v. State, 707 N.E.2d 767, 774 (Ind.l999)("We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the post-conviction court.”) (citation omitted), cert. denied, 529 U.S. 1088, 120 S.Ct. 1722, 146 L.Ed.2d 643 (2000); Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998), cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000).
We note also that the trial court ordered Coleman’s transfer to a diagnostic center for a psychological and psychiatric evaluation prior to sentencing, to better determine "the nature of the offender....” (T.R. at 2619.) Coleman objected, however, and the evaluation did not occur. (Id.)
The U.S. Supreme Court advised in Strickland that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
At the sentencing hearing, Coleman's counsel pointed out that Coleman was already under two death sentences and questioned the need for an additional death sentence given that Coleman could only die once. (T.R. at 2571.) Counsel also argued that Coleman’s life should be spared in the interests of studying the criminal psyche. (T.R. at 2576-77.) We do not count either argument as mitigating.
Alton COLEMAN, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
No. 98-3546.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 5, 2000.
Decided and Filed March 26, 2001.
David C. Stebbins (argued and briefed), Columbus, OH, Dale A. Baich (briefed), Phoenix, AZ, Fredric F. Kay, Federal Public Defender (briefed), Tucson, AZ, for Petitioner-Appellant.
Charles L. Wille (argued and briefed), Office of the Attorney General, Columbus, OH, for Respondent-Appellee.
Before: MERRITT, RYAN, and BOGGS, Circuit Judges.
[OPINION BY RYAN, Circuit Judge. type=majority]
OPINION
RYAN, Circuit Judge.
Petitioner Alton Coleman has been convicted of murder in an Ohio state court and has been sentenced to death. He now appeals the district court’s order dismissing his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. Coleman raises several assignments of error, the most serious of which are: (1) the district court erred when it held that Coleman had proeedurally defaulted on 34 of the 50 claims raised in his habeas petition; (2) his constitutional due process rights were violated because of prosecutorial misconduct and the introduction of “other acts” evidence; and (3) he was denied effective assistance of counsel at sentencing because his attorneys failed to fully investigate his background and mental health for purposes of offering evidence in mitigation. For the reasons discussed below, we will affirm the judgment of the district court.
I.
A.
On July 13, 1984, Coleman and his girlfriend, Debra D. Brown, arrived via bicycle in Norwood, Ohio, and stopped at the home of H.W. and Marlene Walters around 9:30 a.m. After inquiring about a camping trailer the Walterses had for sale, Coleman and Brown were invited into the Walterses’ home. Once inside, Coleman picked up a wooden candlestick and began striking Mr. W. on the back of the head.
When the Walterses’ daughter, S.W., arrived home from work around 3:45 p.m. the same day, she found the house splattered with blood and her parents’ motionless bodies lying at the bottom of the basement steps. Mr. W., barely breathing, had his hands handcuffed behind his back and his feet tied together with electrical cords. Mrs. Walters, already dead, had a bloody sheet covering her head. Her hands were bound behind her back and her feet were tied together with electrical cords. At trial, expert testimony indicated that Mrs. Walters had been struck on the head approximately 25 times. Twelve lacerations, several made with a pair of vise grips, covered her face and scalp. The back of her skull was smashed to pieces, and parts of both her skull and brain were missing. Mr. W. survived the beating with some degree of brain damage.
Money, jewelry, shoes, and the family car had been stolen. Two bicycles were found abandoned in the Walterses’ yard, and Coleman’s fingerprints were found on a broken soda bottle in the living room.
Coleman and Brown have been implicated in several murders, rapes, kidnappings, and armed robberies that were committed in several Midwestern states during the summer of 1984.
B.
A Hamilton County grand jury indicted Coleman on the following five counts: (1) aggravated murder while committing aggravated burglary; (2) aggravated murder while committing aggravated robbery; (3) attempted aggravated murder; (4) aggravated robbery; and (5) aggravated burglary. Following trial, an Ohio jury returned a verdict of guilty on all charges and Coleman was sentenced to death for the aggravated murder of Mrs. Walters. Coleman’s judgment of conviction and his death sentence were affirmed by the Ohio Court of Appeals, State v. Coleman, Nos. C-850340, B-842559A, 1986 WL 14070 (Ohio Ct.App. Dec. 10, 1986), and the Ohio Supreme Court, State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988). The United States Supreme Court denied certiorari, Coleman v. Ohio, 488 U.S. 900, 109 S.Ct. 250,102 L.Ed.2d 238 (1988).
Coleman then petitioned the trial court for post-conviction relief pursuant to Ohio Rev.Code Ann. § 2953.21. The trial court, without conducting an evidentiary hearing, adopted the state’s proposed findings of fact and conclusions of law and denied relief. The Ohio Court of Appeals affirmed the trial court’s decision, State v. Coleman, No. C-900811, 1993 WL 74756 (Ohio Ct.App. Mar.17, 1993), and the Ohio Supreme Court dismissed Coleman’s appeal, ruling that it lacked jurisdiction, State v. Coleman, 67 Ohio St.3d 1450, 619 N.E.2d 419 (1993).
On July 9, 1993, Coleman filed an Application for Delayed Reconsideration in the Ohio Court of Appeals alleging that his counsel on direct appeal had been constitutionally ineffective. The Court of Appeals denied the application, ruling that Coleman had failed to show good cause for filing it more than 90 days after the court’s judgment. See Ohio App. R. 26(B)(2)(b). On October 7, 1994, the Ohio Supreme Court affirmed the Court of Appeals’ decision, denied Coleman’s request for reconsideration, and revoked the stay of execution on Coleman’s death sentence.
On January 6, 1996, Coleman filed his habeas corpus petition in federal court. He brought 50 assignments of error. The district court concluded that 34 of the assignments of error were procedurally barred because Coleman had failed to raise them on direct appeal in state court. The remaining assignments of error were found to be without merit.
On February 13, 1995, the district court granted Coleman’s motion to consolidate three habeas cases: the sentence of death for the murder of Mrs. Walters; a second sentence of death from his conviction for another murder in Ohio; and a conviction for interstate kidnapping. On February 13, 1998, the district court denied, inter alia, Coleman’s habeas corpus petition pertaining to the murder of Mrs. Walters.
Coleman timely appealed the district court’s judgment in the consolidated case, and this court then severed Coleman’s appeal. Consequently, this appeal pertains only to the denial of habeas corpus relief in the capital case involving the death of Mrs. Walters.
II.
Because Coleman’s habeas petition was filed on January 6, 1995, before the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), became effective on April 24, 1996, the pre-AEDPA standard of review applies. See 28 U.S.C. § 2254 (1996). This court must review the district court’s legal conclusions de novo and its findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir.1997). And we must defer to state court factual findings pertaining to primary or historical facts, which are presumed correct and are rebuttable only by clear and convincing evidence. See id. State court determinations of law and mixed questions of law and fact should be reviewed de novo. Id.
III.
The district court concluded that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeas petition because of failure to comply with Ohio’s res judicata doctrine established in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). In Perry, the Ohio Supreme Court held:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
Id. at 108 (emphasis added).
Coleman contends that even if his claims are procedurally defaulted for not having been raised on direct appeal, his default is “excused” because his appellate counsel was constitutionally ineffective for failing to properly raise the issues in that appeal. Coleman cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies by presenting his claims to the state’s highest court. See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). And, he cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. See id. at 731-32, 111 S.Ct. 2546; Combs v. Coyle, 205 F.3d 269, 274 (6th Cir.), cert. denied, — U.S. ——, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000).
When determining whether a state petitioner’s claim is barred from habeas review based on procedural default, this court must look to the following four factors. First, the court must determine that there is an applicable state procedural rule with which the petitioner failed to comply. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). Second, the court must determine that the state rule is one that is “firmly established and regularly followed.” Jones v. Toombs, 125 F.3d 945, 946 (6th Cir.1997) (internal quotation marks and citation omitted). Third, the court must determine that the state procedural rule is an “adequate and independent” state ground on which the state may rely to foreclose review of the federal constitutional claim. Maupin, 785 F.2d at 138. If all three of these factors are met, the petitioner must then show there was “cause” for the default and “prejudice” resulting therefrom, or that a “miscarriage of justice” would result if the procedural default were enforced. See Wainwright v. Sykes, 433 U.S. 72, 84-87, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A state procedural bar will be held to bar federal habeas review only when the last reasoned decision of the state court concluded that the claims were barred by a state procedural rule. See Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir.1991).
In Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), the United States Supreme Court held that “an ineffective-assistanee-ofcounsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.” Id. at 1592. In this case, the petitioner has proeedurally defaulted on his claim that his appellate counsel was ineffective because, as we will explain, he failed to bring the claim in a timely manner as required by Ohio law, which is itself a procedural bar. Therefore, in order for Coleman to use his ineffective assistance of appellate counsel claim as “cause” to excuse his other procedurally defaulted claims, he must first meet the cause and prejudice standard for the ineffective assistance of appellate counsel claim itself. We conclude that Coleman has not carried this burden.
According to Coleman, the district court erred in declining to consider his ineffective assistance of appellate counsel claim on the ground that the claim was procedurally barred. As we have said, .the Ohio Court of Appeals denied Coleman’s effort to have his ineffective assistance of appellate counsel claim considered in his application for delayed reconsideration of his direct appeal. The Court of Appeals ruled that the application was untimely because it was not filed within 90 days of the original Court of Appeals decision, as required by Ohio App. R. 26(B). Coleman alleges that he asserted the claim in his petition for post-conviction relief in the state trial court in 1990, rather than in an application to reconsider his direct appeal, because there was no regularly followed procedure in the Ohio courts for raising such claims.
In February 1992, after conclusion of his direct appeals to the Ohio Court of Appeals and Ohio Supreme Court, and during the pendency of Coleman’s appeal of the denial of his post-conviction petition, the Ohio Supreme Court decided State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). The Mumahan court held that ineffective assistance of appellate counsel claims should be raised in a delayed motion for reconsideration before the Ohio Court of Appeals and not in a petition for post-conviction relief.
Coleman waited 16 months after Mur-nahan was decided before filing his delayed motion for reconsideration in the Court of Appeals on July 9, 1993, and the Court of Appeals dismissed the application because it was more than 90 days after the court’s 1986 decision and Coleman had not shown good cause for the delay, as required by Ohio App. R. 26(B).
On July 1, 1993, Ohio App. R. 26(B) was amended to provide, in pertinent part:
(B) Application for reopening
(1) A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(2) An application for reopening shall contain all of the following:
(b) A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
Ohio App. R. 26(B).
While Coleman’s application was filed prior to the amendment’s effective date, the amendment governs further proceedings in pending actions, unless it is shown that its application would work an injustice. Coleman has not made this showing.
Coleman argues that the 90-day filing period that he missed should have been “tolled” due to the fact that the Ohio Court of Appeals had not yet ruled on his petition for post-conviction relief, which included a claim of ineffective assistance of appellate counsel. Although he is not entirely clear about it, Coleman seems to be arguing there was not a firmly established and regularly followed procedural rule for raising ineffective assistance of appellate counsel claims in 1986 when his appeal was decided in the Ohio Court of Appeals, and therefore, no “adequate and independent” state ground existed to foreclose review of the federal constitutional claim. We do not find Coleman’s argument persuasive.
Before the Ohio Supreme Court’s decision in Mumahan, it was well established in the Ohio First Appellate District, the appellate district in which Coleman’s appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings. See State v. Rone, Nos. C-820322, B-784088, 1983 WL 8877 (Ohio Ct.App. June 1, 1983) (unpublished disposition). Even assuming Coleman was confused by the proper forum in which to initially bring his claim, he does not explain why he did not ask the court to remove his ineffective appellate counsel claim from his post-conviction petition without prejudice in order to raise it in a timely manner in a Mumahan motion or why he waited 16 months after Mumahan was decided to raise the claim.
When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Coleman has not made this showing and does not claim to have done so.
Even if Coleman could offer an appropriate excuse for failing to bring his ineffective assistance of appellate counsel claim in a proper and timely manner, the claim is meritless. The Edwards Court recently reemphasized that “[n]ot just any deficiency in counsel’s performance” is sufficient to excuse procedural default; “the assistance must have been so ineffective as to violate the Federal Constitution.” Edwards, 120 S.Ct. at 1591. The proper ineffective assistance of counsel standard was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687,104 S.Ct. 2052.
On direct appeal to the Ohio First Appellate District, Coleman’s appellate counsel raised 15 assignments of error and on direct appeal to the Ohio Supreme Court, he asserted 11 assignments of error. After a careful review of the record, we are in agreement with the district court that Coleman’s appellate counsel was not deficient for refusing to raise approximately 60 additional claims as Coleman suggests. Coleman does not have a constitutional right to have his counsel press nonfrivolous points if counsel decides as a matter of professional judgment not to press those points. See Jones v. Barnes, 463 U.S. 745, 750-51, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
In conclusion, because Coleman’s ineffective assistance of appellate counsel claim is itself proeedurally defaulted and he has not shown “cause and prejudice” for that default, Coleman’s ineffective assistance claim cannot serve as “cause” to excuse his 34 proeedurally defaulted claims.
IV.
Coleman next claims that his due process rights were violated due to misconduct by the prosecutor.
A.
Specifically, Coleman argues that the prosecution failed to disclose the existence of the following: (1) an interview conducted by the Federal Bureau of Investigation (FBI) on July 20, 1984; (2) items seized by the FBI from Coleman’s grandmother’s home; (3) the identity of L.B., who allegedly knew of Coleman’s whereabouts; (4) Coleman’s alleged efforts to surrender; (5) the prosecution’s intention to persuade Debra Brown to cooperate with them; (6) any exculpatory evidence concerning or relating to Coleman; (7) psychological, psychiatric, and/or medical profiles, reports, evaluations, and summaries concerning Coleman and/or Brown; (8) background files, reports, information, and summaries concerning Coleman and/or members of his family; (9) background information regarding Coleman; and (10) any mitigating evidence concerning Coleman. We agree with the district court that Coleman proeedurally defaulted on any claim related to the seventh item because he failed to raise it on direct appeal, and the state court did not consider it when ruling on Coleman’s post-conviction petition.
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. “[T]here is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Furthermore, there is no Brady violation if the defendant knew or should have known the essential facts necessary to obtain the information in question. See Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998), cert. denied, 528 U.S. 842, 120 S.Ct. 110, 145 L.Ed.2d 93 (1999).
Without deciding that the items described by Coleman were withheld from him as he alleges, we are satisfied that even if they had been supplied to him, the verdict would have been the same because the quantity and quality of the evidence introduced to prove Coleman’s guilt was overwhelming. Consequently, Coleman is unable to show that he was “prejudiced” by not having the information, and there is no Brady violation.
B.
Coleman also claims that he was denied due process of law because the state introduced evidence of “other acts,” including murder, for which he was not on trial.
“Other acts” evidence may be introduced in certain situations pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Rules of Evid., Rule 404(B). Section 2945.59 provides:
In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Ohio Rev.Code Ann. § 2945.59.
And, Ohio Evid. R. 404(B) specifies:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ohio Evid. R. 404(B).
Coleman contends that the “other acts” evidence introduced at trial linking him to other murder cases violated his right to due process and a fair trial because the evidence was dissimilar to the crime involving Mrs. Walters and irrelevant to the issues of scheme, motive, intent, system, or absence of mistake or accident.
The respondent answers that the “other acts” evidence was admissible because of its similarity to the case involving Mrs. Walters since it shows that Coleman was involved in other cases involving: (1) elderly couples; (2) use of deception to enter the victim’s home; (3) use of handcuffs; (4) use of electrical cords to tie the victim’s hands and feet; (5) the incapacitation of the victim’s telephone; (6) the theft of the victim’s motor vehicle; and (7) a conspiracy with Debra Brown. Although the respondent’s argument is not entirely clear, we take it to be that the “other acts” evidence was introduced to show that Mrs. Walters’s killer used the same modus op-erandi that Coleman used in the other killings — his “signature,” so to speak — and therefore, that the “other acts” evidence was admissible as tending to prove Coleman’s identity as the killer in this case. This is, of course, a familiar justification for the introduction of “other acts” evidence pursuant to Ohio Rev.Code Ann. § 2945.59 and Ohio Evid. R. 404(B).
Because this is an appeal from a habeas corpus decision and not an appeal of Coleman’s state conviction, we do not pass upon “errors in the application of state law, especially rulings regarding the admission or exclusion of evidence.” Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988). A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner’s due process rights. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.2000).
The trial court’s explanation for the admission of the “other acts” evidence included:
In many of these other offenses, the evidence showed that the defendant used the same method of operation; that he would handcuff his victims and the majority of his assaults on their persons would occur after they were bound and defenseless. It should be noted that all of the victims of other crimes by the defendant who testified in this trial were elderly people, many of them frail, and most all of them incapable of defending themselves against the defendant’s attack and most certainly when they were at the disadvantage of having their hands bound with handcuffs, electrical cord or similar ligatures.
We agree with the trial court that the “other acts” evidence was relevant because it showed that the methodology the killer used in Mrs. Walters’s death closely resembled that used in other crimes committed by Coleman and thus tended to show that Coleman was Mrs. Walters’s killer. Accordingly, the admission of the evidence was not fundamentally unfair and did not violate Coleman’s due process rights.
V.
Coleman alleges that the district court erred in denying him an evidentiary hearing to reexamine the factual issues resolved by the state courts because he was never afforded the opportunity to develop and litigate the factual bases for his federal constitutional claims. In a habeas proceeding, state court findings of fact enjoy a presumption of correctness. See Rickman, 181 F.3d at 1153. In order for Coleman to prevail on this claim, he must rebut this presumption of correctness with clear and convincing evidence. See id. The record reveals that Coleman was given the opportunity to fully and fairly litigate his claims in the Ohio courts and failed to do so. Because Coleman has done nothing to rebut the presumption of correctness given to the factual issues resolved by the state court, his due process rights have not been violated by the denial of an evidentiary hearing in the federal habeas court.
VI.
Coleman raises a number of challenges to Ohio’s capital punishment scheme both on its face and as applied to his case. The district court rejected each of Coleman’s claims. We agree that the claims relating to Ohio’s capital punishment scheme are either procedurally defaulted or are lacking in merit, substantially for the reasons given in the district court opinion.
VII.
Coleman also contends that he was denied the effective assistance of counsel during sentencing as guaranteed by the Sixth Amendment because his attorneys had a duty to investigate all possible mitigating factors, including those relating to Coleman’s mental health background, and counsel breached this duty by failing to conduct a complete, independent investigation. We are not entirely convinced that Coleman properly raised this claim on direct appeal; indeed, we are inclined to think the claim was proeedurally defaulted. However, the respondent stipulated that Coleman “may be deemed to have fairly presented [this] issue in state court,” so we will address the merits of the claim.
Specifically, Coleman alleges four errors committed by his counsel at sentencing: (1) failure to demand a hearing and determination concerning both his competency to waive presentation of mitigation evidence and his refusal to cooperate with trial counsel in providing information for an appropriate investigation of mitigating factors; (2) failure to obtain the necessary reports and evaluations from the appropriate experts for use as evidence at the mitigation phase of the proceedings; (3) failure to raise the issue of the constitutional impropriety of Coleman effectively waiving the presentation of mitigation evidence at the sentencing phase of the proceedings; and (4) failure to request the appointment of an investigator, mitigation specialist, and/or psychologist to assist in the investigation, preparation, and presentation of mitigating evidence.
To repeat, the Strickland Court articulated the following test for determining the effectiveness of counsel:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
When elaborating on the “prejudice” prong of this test, the Strickland Court stated:
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. ...
... [T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at 693-94, 104 S.Ct. 2052 (citations omitted).
In this case, counsel proceeded with a so-called “residual doubt theory” because Coleman instructed him to do so. Residual doubt has been described as a theory that creates “a lingering uncertainty about facts, a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’” Franklin v. Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O’Connor, J, concurring). In State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997), the Ohio Supreme Court explained:
Residual or lingering doubt as to the defendant’s guilt or innocence is not a factor relevant to the imposition of the death sentence because it has nothing to do with the nature and circumstances of the offense or the history, character, and background of the offender....
Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in ease a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial....
Residual doubt is not an acceptable mitigating factor under R.C. 2929.0MB), since it is irrelevant to the issue of whether the defendant should be sentenced to death.
Id. at 1123 (emphasis added) (citations omitted).
We recognized in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946, 120 S.Ct. 369, 145 L.Ed.2d 284 (1999):
Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent) mitigating circumstances, and recommend death.
Id. at 426.
And, the Mopes court also stated that “when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation.” Id. Recently, in Carter v. Bell, 218 F.3d 581, 600 (6th Cir.2000), and Skaggs v. Parker, 285 F.3d 261, 269, 271 (6th Cir.2000), this court has held that failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.
But, this case is distinguishable from Mopes, Carter, and Skaggs because after the various options for proceeding in the sentencing phase of the case were explained to him, Coleman directed his counsel to proceed with the residual doubt theory, which did not include the introduction of mitigating evidence relating to Coleman’s past mental history. Coleman now argues that his counsel was ineffective for following his instructions because counsel should have realized that he lacked the competence needed to choose an appropriate sentencing strategy.
It is well established that a criminal defendant may not be tried unless he is competent. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). To be competent for trial, a defendant must have “sufficient ability to consult with his lawyers and a reasonable degree of rational and factual understanding of the proceedings against him.” United States v. Ford, 184 F.3d 566, 580 (6th Cir.1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175, 145 L.Ed.2d 1083 (2000). Godinez clarified that the level of competence needed to waive counsel is the same as that needed to stand trial. See Godinez, 509 U.S. at 399, 113 S.Ct. 2680.
We believe that the Godinez standard should also apply here to determine whether Coleman was competent enough to instruct his counsel as to the appropriate strategy to pursue at sentencing. As the district court recognized, “Coleman acted as co-counsel to the extent of addressing the jury, examining at least one witness, and participating in side-bench conferences between counsel and the judge, as well as presenting his own motions.” (Internal quotation marks omitted.) Nothing in the trial record that memorializes Coleman’s extensive participation in the trial suggests that he lacked a “rational and factual understanding” of the proceedings against him and the potential impact of utilizing a residual doubt theory at sentencing.
While recent decisions from this court have emphasized that failure to present mitigating evidence at sentencing may constitute ineffective assistance of counsel under the Sixth Amendment, counsel may nevertheless make a reasonable decision that investigation is not necessary. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Indeed, the Strickland Court noted that “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Id.
Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman’s direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices. He repeatedly advised his lawyer to proceed with the residual doubt theory and not to investigate possible mitigating factors. An attorney’s conduct is not deficient simply for following his client’s instructions. See Jones, 463 U.S. at 751-52, 103 S.Ct. 3308. The petitioner was not deprived of his Sixth Amendment right to effective assistance of counsel at sentencing under the Strickland standard.
VIII.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Alton COLEMAN, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
No. 98-3545.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 2, 2000.
Decided and Filed Oct. 10, 2001.
David C. Stebbins (argued and briefed), Columbus, OH, Dale A. Baich (briefed), Office of the Federal Public Defender for the District of Arizona, Phoenix, AZ, Fredric F. Kay, Tucson, AZ, for Petitioner-Appellant.
Charles L. Wille (argued and briefed), Office of the Attorney General of Ohio, Capital Crimes Section, Columbus, OH, for Respondenb-Appellee.
Before: BATCHELDER, COLE, and CLAY, Circuit Judges.
[OPINION BY CLAY, Circuit Judge. type=majority]
CLAY, J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 454-56), delivered a separate opinion concurring in part and dissenting in part.
OPINION
CLAY, Circuit Judge.
Petitioner, Alton Coleman, appeals from the district court order denying Petitioner’s motion, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to alter or amend the district court order denying Petitioner’s application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and lifting the stay of execution previously entered by the district court. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART and REMAND for further proceedings not inconsistent with this opinion.
BACKGROUND
I. Procedural History
On October 10, 1984, a Hamilton County, Ohio, grand jury indicted Petitioner for the aggravated murder of Tonnie Storey, with death penalty specifications, as well as for the aggravated robbery of Storey. On June 15, 1985, a jury found Petitioner guilty of aggravated murder under Ohio Revised Code § 2903.01 with one death penalty specification. The following day, the jury recommended the death penalty for Petitioner. On June 24, 1985, following independent review of aggravating and mitigating factors, the Court of Common Pleas of Hamilton County, Ohio sentenced Petitioner to death. The court then ordered that Petitioner be returned to federal custody, where Petitioner had been serving a twenty-year federal sentence for a 1984 conviction under 18 U.S.C. § 1201(a), the federal kidnaping statute. However, the court reserved the right of the State of Ohio to request custody of Petitioner in order to carry out the Ohio sentence from the Storey case, as well as to carry out a second death sentence, also imposed by the Court of Common Pleas in a separate trial, in connection with the murder of Marlene Walters. The court imposed the death sentence in the Walters case in May of 1985, one month prior to imposing the separate death sentence in the Storey case.
On October 7, 1987, the Ohio First Appellate District affirmed Petitioner’s conviction and death sentence in the Storey case, which was upheld by the Ohio Supreme Court. On January 20, 1990, the United States Supreme Court denied cer-tiorari. On January 31, 1990, the Ohio Supreme Court set an execution date of April 24,1990, which, in March of 1990, the Ohio Supreme Court stayed for six months to allow Petitioner to file his post-conviction petition. Petitioner filed his post-conviction petition with the common pleas court on September 4, 1990, raising one hundred and four claims for relief. The common pleas court denied Petitioner’s post-conviction petition, which was affirmed by the Ohio First Appellate District in March of 1993. The Ohio Supreme Court subsequently declined jurisdiction over Petitioner’s appeal.
On June 30, 1993, Petitioner filed an application for delayed reconsideration in the Ohio First Appellate District, which the court denied and was later affirmed by the Ohio Supreme Court. On October 7, 1994, the Ohio Supreme Court set Petitioner’s execution date for January 5, 1995.
Following a ten-day stay of execution by the district court, on January 6,1995, Petitioner filed petitions for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 in connection with the Storey and Walters cases, which were later consolidated on appeal. On February 10, 1998, the district court denied Petitioner’s § 2254 petitions and lifted the stay of execution previously entered by the district court. On April 14, 1998, the district court denied Petitioner’s motion to alter or amend the district court order pursuant to Federal Rule of Civil Procedure 59(e). Petitioner appeals.
II. Criminal History
The Ohio Supreme Court provided the following factual findings in connection with Storey murder:
On July 7, 1984, [Petitioner] and Debra D. Brown approached the home of the Reverend and Mrs. M.G. of Dayton, Ohio. After conversing with Mr. G., they stayed at the G.s’ home from July 7 through July 9, 1984. [Petitioner] and Brown accompanied the G.s to religious services in Lockwood, Ohio, on July 9, 1984. The next day, the G.s drove appellant and Brown to downtown Cincinnati and dropped them off.
On July 11, 1984 at approximately 10:00 a.m., Tonnie Storey, age fifteen, left her home in Cincinnati wearing rusty brown cutoff shorts, a beige sleeveless blouse with yellow rings, blue tassel shoes and a Michael Jackson button. She was next seen at Bloom Junior High School at approximately 11:45 a.m. by a teacher.
Later that same day, between 5:00 and 6:00 p.m., a classmate saw Tonnie on the corner of May and Morgan Streets in Cincinnati in the company of a man and a woman. The classmate identified the man as [Petitioner], When Tonnie had not returned home by 4:30 p.m. that day, her mother called the police and reported her missing.
On July 19, 1984, a body was discovered in an abandoned building on May Street by a real estate agent. A Michael Jackson button and a pair of brown shorts with keys in the pocket were discovered in the area where the body was found. The keys identified by decedent’s father belonged to the Storey residence. The body was badly decomposed and identification was made through fingerprints. The body was identified as that of Ton-nie Storey. The cause of death of Ton-nie was homicidal asphyxia.
State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622, 624-25 (1989). The Ohio Supreme Court also detailed Petitioner’s other criminal activity during the summer of 1984, which included multiple assaults, thefts, and murders. A summary of this criminal activity is presented in part TV of the discussion section below.
III. Mental History
On September 4, 1984, the district court referred Petitioner to the Federal Correctional Institution at Butner, North Carolina, for an evaluation of whether Petitioner was competent to stand trial on federal kidnaping charges. Sally Cunningham Johnson, M.D., and Jim Hilkey, Ph. D., conducted the evaluation, which was limited to Petitioner’s mental competency to understand the federal kidnaping charges brought against him and ability to work with an attorney in defending against those charges. Within those parameters, Drs. Johnson and Hilkey found Petitioner to be mentally competent to stand trial. The findings did not address Petitioner’s mental condition at the time of the Storey murder or at the time of the Storey trial.
Counsel stipulated to Petitioner’s mental competency to stand trial in the Storey case. Petitioner argues on appeal that the examinations which resulted in him being found mentally competent were limited, and that independent investigation by Petitioner’s counsel into Petitioner’s social and mental history would have led to the presentation of substantial mitigating evidence at the penalty phase of Petitioner’s trial. Petitioner’s personal background, and counsel’s role in investigating that background, are presented in part VII of the discussion section below.
DISCUSSION
Petitioner’s habeas application to the district court raised forty-eight grounds for relief. The district court found twenty-seven of those grounds to be procedurally barred, and the remainder non-meritorious or inappropriately presented in the federal habeas context. On appeal to this Court, Petitioner raises eight issues for review.
Because Petitioner’s habeas application was filed in 1995, prior to the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the preAEDPA standard of review applies. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). Under the pre-AEDPA standard, we presume the correctness of state court factual findings, which are rebuttable only by clear and convincing evidence, and we review determinations of law, or determinations involving mixed questions of law and fact, de novo. Id. (citing Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir.1997), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827, 140 L.Ed.2d 962 (1998)).
I. Procedurally Defaulted Claims
A. Adequate and Independent State Ground
Petitioner argues that the district court erred when it relied on the Ohio state court’s application of res judicata under § 2953.21 of the Ohio Post Conviction Act to procedurally bar many of Petitioner’s federal constitutional claims raised in his habeas application.
In State v. Perry, the Ohio Supreme Court found that Ohio courts should apply the doctrine of res judicata when determining post-conviction relief under § 2953.21:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
10 Ohio St.2d 175, 226 N.E.2d 104, 108 (1967).
Petitioner argues that res judicata under § 2953.21 was not an adequate and independent state ground on which to procedurally bar his habeas claims, and thus did not satisfy federal requirements under Maupin v. Smith, 785 F.2d 135 (6th Cir.1986). Under Maupin, the following is required of a state procedural rule which bars federal review of a habeas claim. First, the rule must apply to the petitioner’s claim, and the petitioner must have failed to comply with the rule. Second, state courts must have actually enforced the rule. Third, the rule must constitute an adequate and independent state ground justifying foreclosure of the federal constitutional claim. “This question generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.” Id. at 138. If a state procedural rule satisfies the above three elements, default may nevertheless be excused if the petitioner has shown cause for violating the state procedural rule and prejudice resulting from the alleged constitutional error. Id.
Petitioner argues that res judicata was an inadequate procedural bar in this case because he was denied a reasonable opportunity to present his claims in state court in violation of Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955). However, this Court, in Rust v. Zent, 17 F.3d 155 (6th Cir.1994), and Riggins v. McMackin, 935 F.2d 790 (6th Cir.1991), has held that application of res judicata under § 2953.21 is an adequate and independent state ground justifying foreclosure of constitutional claims in habeas.
Petitioner argues that Keener v. Ridenour, 594 F.2d 581 (6th Cir.1979), supports his position that application of res judicata under § 2953.21 was not an adequate and independent state ground for barring his habeas claims. In Keener, this Court found:
The Ohio Supreme Court has construed the Post Conviction Act to preclude judicial review of new issues in all but a limited number of circumstances. As a result, Ohio post-conviction collateral relief is not coextensive with federal statutory habeas corpus. So long as the Ohio Post Conviction Act, as construed by the Supreme Court of Ohio in State v. Perry, remains unamended, there will be repeated instances in which an Ohio prisoner will present claims, cognizable in federal court, which have never been reviewed by the State courts of Ohio.
Keener, 594 F.2d at 590 (footnote omitted).
In Riggins, this Court did not address the coextensiveness of procedural default under the Ohio Post Conviction Act and federal habeas. Rather, this Court simply concluded, under Perry, that petitioner was:
precluded from raising his due process claim in Ohio state court because he had the opportunity to raise the issue during the course of his direct appeal and failed to do so ... Thus, because Ohio law establishes a procedural bar to [petitioner’s] due process claim, this court will not consider that claim unless [petitioner] establishes [cause and prejudice].
Riggins, 935 F.2d at 793 (citing Perry, 226 N.E.2d at 104).
In Rust, citing Riggins, this Court also found petitioner’s habeas claims barred without reference to coextensiveness under Keener. Specifically, this Court found that petitioner was:
barred from presenting his constitutional claims to the state courts because he had the opportunity to raise the issues during the course of his direct appeal but failed to do so ... Because [petitioner] failed to raise his constitutional issues in his direct appeal, and because [petitioner’s] procedural default [under the Ohio res judicata doctrine] constituted an ‘adequate and independent’ state ground on which the state relied to foreclose judicial review of his constitutional claims, we may not consider [petitioner’s] constitutional claims unless he can show [cause and prejudice].
Rust, 17 F.3d at 160-61 (citations omitted).
This Court in Keener cited several cases in support of its position that “because of the narrow interpretation placed on [Section] 2953.21 by the Ohio Supreme Court, collateral relief is often unavailable or ineffective as a State remedy.” Keener, 594 F.2d at 590. However, these cases concerned forgiveness of the exhaustion requirement for habeas review, not the adequacy of res judicata under § 2953.21 as a state ground justifying foreclosure of a federal constitutional claim. One case, Mackey v. Koloski, 23 Ohio Misc. 1, 413 F.2d 1019, 1021 (6th Cir.1969), stated:
[a]s we said in Terrell v. Perini, 414 F.2d 1231 [ (6th Cir.1969)], and Coley v. Alvis, 15 Ohio Misc. 177, 381 F.2d 870 [ (6th Cir.1967)], the Supreme Court of Ohio has interpreted Ohio Revised Code Section 2953.21 ... so narrowly that it would afford the appellant no effective remedy.... We hold that the appellant should not be required to apply for a delayed appeal of the denial of his motion to vacate his sentence in order to exhaust state remedies.
This Court’s conclusion in. Keener, after discussion of Terrell, Coley, and Mackey, did not concern whether res judicata un,der § 2953.21 was an adequate and independent state ground justifying foreclosure of federal constitutional claims; rather, Keener found that because petitioner’s claim was not cognizable under § 2953.21, “he has exhausted available State remedies.” Keener, 594 F.2d at 590. Conversely, Rust and Riggins spoke directly to the issue of res judicata under § 2953.21 as an adequate and independent state ground. Rust and Riggins, not Keener, are controlling as to Petitioner’s claim; application of res judicata under § 2953.21 is an adequate and independent state ground for barring habeas review of constitutional claims.
However, Petitioner argues that the facts giving rise to the Ohio court’s application of res judicata to his case render the ground inadequate in this particular instance. Petitioner cites James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984), to support his claim that res judicata under § 2953.21 was “not the sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights,” and thus not an adequate state ground on which to rely in barring constitutional claims. The Supreme Court in James noted that a Kentucky rule’s distinction between “instructions” and “admonitions” was “not strictly adhered to” and that the Kentucky Court of Appeals had reached decisions contrary to the rule “in several cases”. James, 466 U.S. at 347-348, 104 S.Ct. 1830.
Petitioner’s demonstration of the Ohio courts’ inconsistent application of res judicata under § 2953.21 consists of one case, State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989). In Howard, a conviction was reversed in post-conviction proceedings because of an improper jury instruction. The court could have applied res judicata, in that the instruction issue could have been litigated on appeal, but chose to reverse the conviction instead. However, Howard failed to address the res judicata issue directly. Moreover, even assuming that Howard supported Petitioner’s position, one decision does not likely establish “inconsistent application” of a procedural rule. “[A]n occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate.” Amos v. Scott, 61 F.3d 333, 342 (5th Cir.1995), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995). Further, as discussed above, James referenced “several cases” in support of its finding a Kentucky rule to have been inconsistently applied. We do not find that the Ohio Supreme Court’s failure to apply res judicata in Howard precludes its qualification as an independent and adequate state ground under Maupin.
Petitioner then argues against application of the rule of Ohio v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), to his case. In Murnahan, the Supreme Court of Ohio held that claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to § 2953.21. Id. at 1208. The Murnahan court instructed that colorable claims of ineffective assistance of appellate counsel, for which the application of res judicata would be unjust, should be presented in an application for delayed reconsideration in the court of appeals where the alleged error took place pursuant to Ohio Appellate Rules 26 and 14(B). Id. at 1209.
Defendant in Murnahan, like Petitioner in this case, had pursued his claim of ineffective assistance of appellate counsel by request for post-conviction relief pursuant to § 2953.21. Petitioner argues that the Ohio courts in his case, as in Murnahan, should have permitted Petitioner to apply for delayed reconsideration in the Ohio court of appeals.
Murnahan was decided in February of 1992. In June of 1993, Petitioner filed his Mumahan application for delayed reconsideration of his appeal based on ineffective assistance of appellate counsel. In February of 1994, the Ohio First Appellate District found Petitioner’s Murnahan application to be time-barred under Appellate Rule 26(B), which requires applications for reopening to be filed within ninety days after entry of appellate judgment. Appellate Rule 26(B), an amendment to the Ohio Rules of Appellate Procedure, became effective July 1, 1993, after Petitioner had filed his Mumahan application.
Former Ohio Appellate Rule 26, in effect at the time of the Murnahan decision, required that applications for reconsideration be filed by the later of the court’s filing of the decision or within ten days of the announcement of the decision, a time limit that the court could extend for good cause under Ohio Appellate Rule 14(B).
Ohio Appellate Rule 33(M) states that amendments to the Rules of Appellate Procedure that took effect on July 1, 1993, such as Appellate Rule 26(B), govern proceedings pending on July 1, 1993, except where application of the amended rules to those actions would cause injustice, in which case the former procedure applies. See Ohio v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784, 786 (1996).
Good cause must be shown for a late filing of a motion for reconsideration under either former Appellate Rules 26 and 14(B) or current Appellate Rule 26(B): “the good-cause requirement of App.R. 26(B) succeeds and incorporates the good-cause requirement of Murnahan and former App.R. 14(B).” Reddick, 647 N.E.2d at 786. Petitioner argues that the sixteen months separating the Murnahan decision from his motion for reconsideration should not bar his claim because during that time he was actively litigating the applicability of Murnahan to his case before the Ohio First Appellate District. However, Petitioner has not offered legal support for the claim that litigating the applicability of Murnahan to his case constituted good cause for filing his Murnahan application sixteen months after the Murnahan decision.
Even assuming that Petitioner had shown good cause for his delay in filing for reconsideration, Petitioner, in his habeas application, offered no argument that the claims omitted by counsel' were stronger than those raised by counsel on appeal. “Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986).
As noted by the district court, appellate counsel for Petitioner raised twelve assignments of error on appeal, which were grounded in dozens of specific issues for review. Petitioner, in the forty-fourth ground for relief in his habeas petition to the district court, identified some seventy-five additional issues which appellate counsel had “failed to raise”. (J.A. at 214.)
The Supreme Court, in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), found that the professional judgment of appellate counsel includes the determination of which colorable claims to raise on appeal, and that appellate counsel is not ineffective when failing to raise every colorable claim. Indeed, the argument for ineffective assistance of appellate counsel may have been stronger had every colorable claim actually been raised:
Most cases present only one, two, or three significant questions.... Usually ... if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones.
Barnes, 463 U.S. at 752, 103 S.Ct. 3308 (quoting R. Stern, Appellate Practice in the United States 266 (1981)). Petitioner argues that appellate counsel would have been more effective by raising nearly ninety, rather than twelve, issues on appeal. The Supreme Court in Barnes rejected such reasoning.
Petitioner also argues that the district court’s analysis of his ineffective assistance of appellate counsel claim failed to review required considerations as provided in Mapes. In Mapes, this Court suggested eleven considerations “that ought to be taken into account in determining whether an attorney on direct appeal performed reasonably competently.” Mapes, 171 F.3d at 427. Although Petitioner argues that the district court’s analysis of the individual claims not raised by counsel on appeal was insufficient, Petitioner’s habeas application itself lacked any factual specifics underlying those omitted claims. After enumerating the seventy-five claims un-raised on appeal, Petitioner alleged:
At the time of [Petitioner’s] appeals, the above issues were recognized and accepted as viable issues by effective attorneys practicing capital litigation and having knowledge concerning the capital litigation process. Prevailing professional norms prescribed that capital appellate counsel must raise these issues on appeal.... The performance of appellate counsel in failing to raise these issues was deficient. Appellate counsel’s performance was below prevailing professional norms of reasonably competent counsel.
(J.A. at 223.) Petitioner did not allege in his petition facts which may have lent particular importance to some of the seventy-five omitted claims relative to the strategic value of the twelve claims actually raised on appeal. Even if reviewing the merits of Petitioner’s ineffective assistance of appellate counsel claim, Petitioner’s argument that prevailing professional norms require reasonably competent counsel in capital cases to raise a particular set of at least seventy-five claims on appeal is contrary to Banes and, given the lack of alleged facts underlying Petitioner’s claim, beyond the scope of fact-intensive review under Mapes.
Finally, Petitioner argues that the Munahan “substantive showing” standard violates Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as reiterated in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The Supreme Court clarified in Robbins that states are free to adopt procedures for protecting a defendant’s right to appellate counsel which are different from the procedure presented by the Supreme Court in Anders, so long as such procedures “adequately safeguard a defendant’s right to appellate counsel.” Robbins, at 264, 120 S.Ct. 746. A procedure satisfying the “adequate safeguard” standard is one that “reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” Id. at 279, 120 S.Ct. 746.
The Supreme Court in Robbins stated that under Anders, the Fourteenth Amendment requires that prior to dismissing a direct appeal, a state must fairly assess whether such appeal is frivolous. Robbins, 528 U.S. at 270-71, 120 S.Ct. 746. In contrast, merely finding an appeal to be meritless is an insufficient ground for excusing the state’s obligation to address the claim. Petitioner argues that the Muna-han standard, which allows appellate courts to dismiss a Munahan application if no “substantive” showing in support of the ineffective assistance of appellate counsel claim has been made, Murnahan, 584 N.E.2d at 1209, denies defendants their Fourteenth Amendment right under Robbins to adequate and effective appellate review.
However, Petitioner’s Mumahan application was not dismissed for failure to make a substantive showing in support of his ineffective assistance of appellate counsel claim; rather, the Murnahan application was dismissed for exceeding the time limit for filing under Appellate Rule 26(B), a procedural bar that does not implicate Robbins or Anders. Due to this late filing, the Ohio appeals court did not review Petitioner’s Mumahan application for substance. Thus, the Murnahan standard that Petitioner is challenging under the Fourteenth Amendment was not applied to his motion for reconsideration. Even if this Court were to find Murnahan’s “substantive showing” requirement invalid under Robbins, Petitioner’s Murnahan application would remain procedurally barred. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Assoc., 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988).
We find that under Rust and Riggins, res judicata under § 2953.21 is an adequate and independent state ground for barring habeas review of constitutional claims. We also find that Petitioner has not demonstrated good cause for failing to meet Appellate Rule 26(B) filing requirements, and that such procedural default precludes review of the “substantive showing” standard of Murnahan in light of Robbins.
B. Ineffective Assistance of Appellate Counsel as Cause
Petitioner next argues that even if his claim of ineffective assistance of counsel was procedurally defaulted, nevertheless it may serve as cause for his other procedurally defaulted claims under Carpenter v. Mohr, 163 F.3d 938 (6th Cir.1998). However, the Supreme Court has since held that a procedurally defaulted ineffective assistance of counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the “cause and prejudice” standard with respect to the ineffective assistance claim itself. Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Petitioner has not forwarded any cause and prejudice argument in connection with his defaulted ineffective assistance of appellate counsel claim. Thus, under Edwards, Petitioner’s defaulted ineffective assistance of appellate counsel claim may not be used as cause for Petitioner’s other defaulted habeas claims.
II. Evidentiary Hearing
Petitioner requested an evidentiary hearing in the district court to further develop the factual bases of his constitutional claims. The district court denied Petitioner’s request, on grounds that Petitioner had failed to rebut the presumption of correctness afforded state court findings of fact under 28 U.S.C. § 2254(d). Petitioner argues that because the state procedure provided was inadequate to afford a full and fair hearing, the district court, under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), was obligated to grant Petitioner an evidentiary hearing. In the alternative, Petitioner argues that the district court, in its discretion, should have granted an evidentiary hearing, under Sims v. Livesay, 970 F.2d 1575 (6th Cir.1992), because Petitioner was denied an evidentiary hearing in state court.
Because Petitioner filed for habeas relief prior to the passage of the AEDPA, that statute’s amendments to 28 U.S.C. § 2254(d) do not apply to this case. This Court, in Scott v. Mitchell, 209 F.3d 854, 863 (2000), summarized our standard of review for state court factual findings under pre-AEDPA § 2254(d): “we presume primary, or historical, factual findings by the state courts to be correct, rebuttable only by clear and convincing evidence under one of the eight conditions listed in the pre-AEDPA version of 28 U.S.C. § 2254(d)(l-8).”
The district court relied on Mitchell v. Rees, 114 F.3d 571 (6th Cir.1997), when denying Petitioner’s evidentiary hearing request. Rees held that “[b]ecause § 2254(d) is an express limitation on the district court’s jurisdiction, a district court is without authority to hold an evidentiary hearing on a matter on which the state court has made findings unless one of the factors contained in § 2254(d) applies.” Id. at 577.
Townsend found that “[wjhere the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend, 372 U.S. at 312, 83 S.Ct. 745. Townsend then listed six circumstances in which a federal court must grant an evidentiary hearing to a habeas applicant.
Townsend was decided prior to passage of the 1966 amendments embodied in § 2254(d). The 1966 amendments were intended by Congress to limit the exercise of federal court jurisdiction. See Rees, 114 F.3d at 576. In Fowler v. Jago, 683 F.2d 983, 988 (6th Cir.1982), this Court found that the eight exceptions allowing for the setting aside of the presumption of correctness under § 2254(d) “appear to subsume the six Townsend criteria.”
In addition, we noted in Fowler that “in order to eliminate the need for an independent federal evidentiary hearing, the district court must examine the findings of the state court to determine whether the state trier of fact reliably found the material facts and rejected the claim on its merits.” Id. at 987. Further, “[u]nder ... § 2254(d) ... the district court must conduct an inquiry into whether the state court has adequately resolved the factual issues contained in the petitioner’s constitutional claim.” Id. at 988.
The district court in this case made such an inquiry:
[T]his Court has undertaken an independent assessment of the thousands of pages of trial transcripts, exhibits, motions, orders, submissions, and other documents to assess the thoroughness and reasoning of the state courts. In so doing, the Court has found that the state courts realized the essential and constitutional importance of these proceedings and conducted their fact-finding accordingly. Sufficient and extensive evidence was adduced at the ... Storey guilt and punishment phases to establish each essential element of the crimes and the propriety of the sentences given.
(J.A. at 325.)
Petitioner asserts that the denial of an evidentiary hearing by both the Ohio state courts and the district court denied him the opportunity to develop the factual bases of his claims. Petitioner argues that not one of the Ohio state court factual findings is entitled to the presumption of correctness under § 2254(d), without identifying which specific material facts may rebut such findings. The cases Petitioner cites in support of his evidentiary hearing claim, Correll v. Stewart, 137 F.3d 1404 (9th Cir.1998), and Jones v. Wood, 114 F.3d 1002 (9th Cir.1997), are distinguishable in that defendants in both cases alleged specific facts contrary to state court findings which they anticipated an eviden-tiary hearing would further develop. Petitioner would likely have a stronger claim to an evidentiary hearing if the claim sought something less than a reconsideration of every factual determination made by the Ohio state courts, and was based on something more than the unarticulated facts which Petitioner alleges he was denied from presenting to the state courts and district court. Under Rees, Petitioner has not indicated, aside from mere passing reference, how any pre-AEDPA § 2254(d) exception applies to his case, and thus the district court did not err in denying his request for an evidentiary hearing.
III. Juiy Instructions
Petitioner argues that improper jury instructions at both the guilt and penalty phases of the trial violated his Fifth, Sixth, Eighth and Fourteenth Amendment rights. Specifically, Petitioner claims that five separate jury instructions violated his constitutional rights.
On habeas review of state court jury instructions, the question for a federal court is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)(quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)).
A. Specific Intent/Aggravated Murder
Petitioner argues that the trial court erred by replacing the element of specific intent, required by Ohio Revised Code § 2903.01(D) to find one guilty of aggravated murder, with proximate cause. Specifically, Petitioner argues that the trial court instructed the jury that to find Petitioner guilty of aggravated murder, the jury need only find that Petitioner was the principal offender in the aggravated burglary, not in the aggravated murder.
The crime of aggravated murder under Ohio law states, “no person shall purposely, and with prior calculation and design, cause the death of another[.]” Ohio Rev. Code § 2903.01(A). The trial court instructed the jury as follows:
Before you can find the defendant guilty of aggravated murder ... you must find that ... defendant purposely caused [Storey’s] death with prior calculation and design.... Purpose to kill is an essential element of the crime of aggravated murder. A person acts purposely when it is a specific intention to cause a certain result. It must be established in this count, that at the time in question, there was present in the mind of the defendant a specific intention to kill Tonnie Storey.... No person may be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another.
(J.A. at 2419-20).
Contrary to Petitioner’s assertions, the jury instructions did not communicate that finding Petitioner to be the principal offender in the burglary was sufficient for finding guilt as to aggravated murder. Rather, the jury instructions clearly stated that finding Petitioner guilty of aggravated murder required finding that Petitioner “purposely caused [Storey’s] death with prior calculation and design.”
B. Recommendation of Death Penalty
Defendant next argues that the trial court’s instructions led jurors to think that the ultimate decision-making responsibility for the death penalty lay elsewhere, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
Caldwell held that a capital sentence is invalid “when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case.” Caldwell, 472 U.S. at 323, 105 S.Ct. 2633. This Court, in Kordenbrock v. Scroggy, 919 F.2d 1091, 1101 (6th Cir.1991)(e% bane), found that a jury instruction and prosecutor’s characterization of a jury’s death sentence as a “recommendation” was consistent with Kentucky law and did not violate Caldwell. Kordenbrock stated that “[i]n order to make out a Caldwell violation, [petitioner] must show that the prosecutor improperly described the jury’s role under state law in order to water down their responsibility.” Id. (citing Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989)).
The relevant Ohio law is Ohio Revised Code § 2929.03(D):
If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender.... [I]f, after receiving ... the trial jury’s recommendation that the sentence of death be imposed, the court finds, by proof beyond a reasonable doubt ..'. that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, it shall impose sentence of death on the offender. Absent such a finding by the court ... the court ... shall impose one of the following [life] sentences on the offender!.]
The trial court instructed the jury as follows:
All twelve jurors must agree upon a verdict. If all twelve members of the jury find, by proof beyond a reasonable doubt, that the aggravating circumstance which [Defendant] was found guilty of committing, outweigh the mitigating factors, then you must return such finding to the Court, and as a matter of law, you would have no choice but to recommend to the Court that the sentence of death be ordered.
The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court after the Court follows certain additional procedures required by the laws, of this State. Therefore, even if you recommend the death penalty, the law requires the Court to decide whether or not the [Defendant ... will actually be sentenced to death or to life imprisonment.
(J.A. at 2511-12.)
“To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Dugger, 489 U.S. at 407, 109 S.Ct. 1211. In Kordenbrock, Kentucky law provided that “the jury shall retire to determine whether any mitigating or aggravating circumstances ... exist and to recommend a sentence for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.” Kordenbrock, 919 F,2d at 1101 (quoting Ky.Rev.Stat. Ann. § 532.025(l)(b)). Because the judge’s characterization of the jury’s sentence as a “recommendation” was found, in Korden-brock, not to violate Caldwell, we find the similar characterization of “recommendation” in this case, when Ohio law requires a separate, post-recommendation finding by the court confirming the jury’s sentence, was also not in violation of Caldwell.
C. Reasonable Doubt at Sentencing
Petitioner argues that the trial judge’s “reasonable doubt” instruction at the penalty phase of the trial violated due process. The district court held this claim to. be procedurally barred because it had not been presented on direct appeal and the Ohio courts had relied on adequate and independent state grounds in barring post-conviction consideration of the claim.
Even assuming the claim is not barred, the jury instruction was not improper. We review jury instructions at the selection phase of the capital sentencing portion of a trial to determine “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Buchanan v. Angelone, 522 U.S. 269, 275, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (citations omitted). The jury instruction at issue was as follows:
The State of Ohio seeks recommendations from you of a death sentence. In order to be entitled to this recommendation the State has the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing is sufficient to outweigh the factors in mitigation. The defendant has no burden of proof and is given great latitude in the presentation of the mitigating factors. In reaching your verdicts you are instructed that you will consider all evidence presented in the first trial, which you deem to be relevant as fully presented again in this proceeding, along with all additional evidence presented in this proceeding. To outweigh means ... to be more important than.... Remember that reasonable doubt is present when after you carefully consider and compare all evidence, you can not say you are firmly convinced of the truth of the charge. Reasonable doubt is doubt based on reason and common sense. Reasonable doubt is not mere possible doubt because everything relating to human affairs or depending upon moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs. If, after a full, fair and impartial consideration of all relevant evidence from both trials you are convinced beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing is sufficient to outweigh the factors in mitigation then the State has proven its right to be entitled to the recommendation of the death penalty.
(J.A. at 2503-2504).
Petitioner argues that this instruction was doubly flawed. First, the court’s characterization of reasonable doubt as not being “firmly convinced” refers to the clear and convincing evidence standard, not reasonable doubt. Second, instructing the jury that they were to consider whether they had reasonable doubt as to the charge, rather than whether aggravating evidence outweighed mitigating evidence, misdirected the jury toward a conclusion that had already been determined at the guilt phase of the trial.
The Supreme Court has discussed trial court definition of the reasonable doubt standard:
The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course ... so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt ... the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.
Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (citations omitted). Rather, the Constitution requires, taking the instructions as a whole, that there not be a reasonable likelihood that the jury understood the instructions to allow conviction based on evidence falling below the reasonable doubt standard. Id. Characterizing reasonable doubt as “substantial doubt” or “not a mere possible doubt” does not violate due process. Id.
In this case, the court described “reasonable doubt” in several ways, including “not a mere possible doubt,” which was specifically upheld in Victor. Petitioner has not articulated how “firmly convinced”, taken together with the court’s various descriptions of reasonable doubt, created a reasonable likelihood that the jury understood the instructions as establishing a clear and convincing evidence standard for determining whether aggravating factors outweigh mitigating factors. The jury instructions actually provided, both at the beginning and the end of the particular instruction at issue, that “the State has the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing is sufficient to outweigh the factors in mitigation.” (J.A. at 2503-04.) We find, both under Victor and its own language, that the penalty phase instruction did not violate due process.
IV. Prosecutorial Misconduct
A. Brady
Petitioner alleges prosecutorial misconduct in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194.
Petitioner argues that the State of Ohio failed to disclose exculpatory information possessed by the F.B.I. and the Cincinnati police. Specifically, Petitioner argues that the F.B.I. was in possession of detailed and material background information on Petitioner. Petitioner’s habeas application alleged ten categories of evidence that the State of Ohio had failed to disclose, including exculpatory background profiles and reports concerning Petitioner and members of Petitioner’s family. Petitioner also alleged that the State of Ohio’s failure to disclose such information to Petitioner’s trial counsel directly and adversely affected trial counsel’s ability to adequately present evidence on Petitioner’s behalf at both the guilt and penalty phases of the trial.
Brady assures the production of exculpatory evidence material to either the guilt or penalty phases of a trial. In United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court clarified the Brady materiality standard: “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Brady rule does not assist a defendant who is aware of essential facts that would allow him to take advantage of the exculpatory evidence at issue. See United States v. Todd, 920 F.2d 399, 405 (6th Cir.1990)(citing United States v. Wilson, 901 F.2d 378 (4th Cir.1990)); United States v. Hicks, 848 F.2d 1, 4 (1st Cir.1988); United States v. Grossman, 843 F.2d 78, 85 (2d Cir.1988).
The district court found that Petitioner had not shown that any of the withheld information might have assisted in his defense and concluded that Petitioner had not established that the withheld evidence would have made a difference in the outcome of the trial.
We agree with the district court that no Brady violation occurred in this case, but on different grounds. We agree that the State of Ohio is not ultimately responsible for the failure of Petitioner’s counsel to present, at the penalty phase of the trial, any mitigating evidence in connection with Petitioner’s personal background. Therefore, under Todd, we find no Brady violation. However, as detailed in the discussion of ineffective assistance of trial counsel in part VII below, we find that it is reasonably probable that presenting mitigating evidence on Petitioner’s background to the jury at the penalty phase of the trial would have produced an outcome different from the death sentence. We therefore depart from the district court’s finding on the materiality of the background evidence at issue.
Material evidence on Petitioner’s background would have been discoverable with minimal investigation by Petitioner’s counsel. Such information was available from varied sources beyond control of the F.B.I., including, as detailed in part VII below, school, hospital and prison records, mental evaluations, family members and acquaintances, as well as Petitioner himself. While the F.B.I. background reports and profiles would likely have provided helpful detail, the essence of Petitioner’s mitigating circumstances, that his life experience had largely been characterized by violence and abuse, was independently available to Petitioner and, importantly, Petitioner’s counsel. Thus, under Todd, the district court did not err in failing to find a Brady violation in this case, although we do not agree with the district court on the materiality of evidence relating to Petitioner’s background, which, had it been presented to the jury, would likely have affected the outcome of the penalty phase of the trial, as indicated by part VII below.
B. Prosecutor Testimony
Petitioner next argues prosecutorial misconduct on grounds that the Hamilton County prosecutor from the Walters case testified in the Storey case. The prosecutor was not on the prosecution team for the Storey case. The prosecutor testified in order to identify Petitioner’s handwriting.
Habeas relief based on prosecutorial misconduct requires that the misconduct be so egregious as to deny petitioner due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643-45, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Although “federal courts have almost universally frowned upon the practice of a Government prosecutor testifying at the trial of the case he is prosecuting, whether for or against the defendant, and have stated that the practice should be permitted only in extraordinary circumstances or for compelling reasons”, a prosecutor may nevertheless testify so long as they otherwise withdraw from the trial. United States v. Birdman, 602 F.2d 547, 553 (3d Cir.1979). The testifying prosecutor in this case, however, had no other role in the case. Further, the scope of his testimony was narrow and probative, identifying Defendant’s handwriting in several motions from the Walters case, which was then compared to the handwriting on the wall directly where the victim’s body was found in the Storey case. Under Birdman, even if the prosecutor had been assigned to this case, the prosecutor may have subsequently been able to testify upon withdrawing from the trial. Because the testifying prosecutor in this case had no other role in the trial, and testified on the narrow and important issue of identifying handwriting samples, we find that the testimony did not violate due process.
C. Other Acts Evidence
Defendant argues that the admission of prior bad acts evidence violated due process because the evidence was inflammatory and dissimilar to the Storey case. Although Petitioner characterizes this claim as prosecutorial misconduct, he is actually challenging a state court evidentiary decision. Federal habeas courts review state court evidentiary decisions only for consistency with due process. Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). State court evidentiary rulings do not rise to the level of due process violations unless they “offend ... some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. (citations omitted).
Although Petitioner argues that the admitted other acts evidence was dissimilar to the Storey case, both the district and state courts explained its relevance. The Ohio Supreme Court stated as follows:
The purpose of presenting [the other acts] evidence was twofold. First, the state’s burden of proof on the first death-penalty specification was to show a “course of conduct” on the part of the defendant involving the killing or attempted killing of two or more persons. Second, the evidence was introduced pursuant to [Ohio Revised Code § ] 2945.59 to prove identity by showing that the appellant had used a similar “scheme, plan, or system” in committing other acts.
State v. Coleman, 544 N.E.2d at 625.
The other acts evidence supported both the course of conduct and similar scheme elements by illustrating, as the Ohio Supreme Court noted, “a unique, identifiable plan of criminal activity.” Id. at 626. The characteristics of this plan included targeting African American pre-teen and teenage girls, theft of automobiles, murder by ligature strangulation, and discarding of corpses in abandoned buildings. Most significant, a bracelet missing from the home of a prior victim was found under the victim’s body in this case. Further, the prejudicial potential of such evidence was lessened by the trial court’s specific instruction to the jury that finding Petitioner guilty of aggravated murder in this case required finding beyond a reasonable doubt that Petitioner had the specific intent to murder Storey.
Given the relevance of the other acts evidence to both the death penalty specification’s course of conduct requirement and establishing a common scheme under Ohio Revised Code § 2945.59, as well as the clear jury instruction on the need to find specific intent as to the Storey murder to find aggravated murder in this case, we find that admission of the other acts evidence did not violate due process.
D. Guilt and Penalty Phase Arguments
Petitioner argues that improper closing arguments by the prosecutor at both the guilt and penalty phases of the trial violated due process. Because Petitioner had not presented these arguments on direct appeal, the district court found them to be procedurally barred. “It is well settled that a prisoner seeking habeas relief in federal court must have presented the claim upon which he seeks relief to the state appellate courts.” Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000). “A habeas petitioner can only overcome procedural default in two instances. First, he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error ... Alternatively, a defendant can show that failure to consider the claim will result in a fundamental miscarriage of justice.” Gall v. Parker, 231 F.3d 265, 316 (6th Cir.2000) (citations omitted). Petitioner in this case has neither attempted to demonstrate cause for failing to raise his closing arguments claims before the Ohio state courts nor show a resulting fundamental miscarriage of justice. Accordingly, this Court may not review his prosecutorial misconduct claims in connection with closing arguments at the guilt and penalty phases of the trial.
V. Ohio Death Penalty Scheme
Petitioner asserts, on several grounds, that the Ohio capital punishment scheme violates the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article VI of the Constitution and customary international law, both on its face and as applied to him.
First, Petitioner highlights the disproportionate imposition of the death penalty on African-Americans in the State of Ohio as indicating an abuse of discretion by prosecutors in seeking the death penalty, as well as an arbitrary application of the death penalty in violation of the Eighth Amendment under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Specifically, Petitioner notes the striking racial discrepancy between African American representation in the Ohio population generally (9%), and such representation on Ohio’s death row (49%).
However, any statistically-based argument, like Petitioner’s, concerning racial disparities in the application of the death penalty, must confront McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). The Supreme Court in McCleskey established a demanding evi-dentiary standard for finding prosecutorial abuse of discretion in seeking the death penalty: “[b]ecause discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.” Id. at 297, 107 S.Ct. 1756. The proof not meeting this standard in McCles-key was a statistical study on the imposition of the death sentence in Georgia that found, among other racial disparities, that “prosecutors seek the death penalty for 70% of black defendants with white victims, but for only ... 19% of white defendants with black victims.” Id. at 327, 107 S.Ct. 1756 (Brennan, J., dissenting) (citation omitted).
As noted by four dissenting Justices in McCleskey, such racial disparities in the capital sentencing system cast doubt on whether capital sentencing determinations have been, in practice, particularized as required by the Eighth Amendment: “[cjonsidering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with [the] concern that an individual be evaluated as a unique human being.” McCleskey, 481 U.S. at 336, 107 S.Ct. 1756 (Brennan, J., dissenting). Subsequent Supreme Court decisions “have reaffirmed that the Eighth Amendment mandates an individualized assessment of the appropriateness of the death penalty.” Penry v. Lynaugh, 492 U.S. 302, 317, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
Nevertheless, McCleskey remains controlling law on the ability of statistically-based arguments concerning racial disparity to establish an unconstitutional application of the death penalty. Although the racial imbalance in the State of Ohio’s capital sentencing system is glaringly extreme, it is no more so than the statistical disparities considered and rejected by the Supreme Court in McCleskey as insufficient to “demonstrate a constitutionally significant risk of racial bias affecting the ... capital sentencing process.” McCleskey, 481 U.S. at 313, 107 S.Ct. 1756. And though the racial imbalance is, to say the least, extremely troubling, we find that the prosecutorial discretion under the Ohio death penalty scheme, and the disconcerting racial imbalances accompanying such discretion, nevertheless fall, under current Supreme Court law, within the “constitutionally permissible range of discretion in imposing the death penalty.” Id. at 305, 107 S.Ct. 1756.
Second, Petitioner argues that Ohio’s scheme, as a mandatory death penalty statute, shields death penalty decisions from judicial review in violation of Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Ohio Revised Code § 2929.03(D) provides that at the sentencing stage of a trial, a jury’s finding that aggravating factors outweigh mitigating factors beyond a reasonable doubt must then result in recommending the death sentence to the court. Unlike Woodson, the Ohio scheme does not mandate the death penalty for any particular crime, and under § 2929.03(D), the death penalty decision making process is not shielded from judicial review. Further, in Boyde v. California, 494 U.S. 370, 374, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), the Supreme Court upheld a nearly identical jury instruction, where a finding that aggravating circumstances outweighed mitigating circumstances mandated recommendation of the death sentence. We find that the Ohio scheme is consistent with Woodson and Boyde.
Third, Petitioner argues that because the Ohio scheme does not require proof of a conscious desire to kill or premeditation and deliberation for imposing the death penalty, such imposition may thus be arbitrary in violation of Furman. While the Ohio crime of aggravated murder under § 2903.01(B) includes felony murder, which does not require prior calculation and design, imposing the death penalty for felony murder is consistent with the Eighth Amendment under Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), where the Supreme Court found that “major participation in the felony.committed, combined with reckless indifference to human life, is sufficient to satisfy the ... culpability requirement” for imposition of the death penalty. We find that Ohio Revised Code § 2903.01(B) is consistent with Tison.
Fourth, Petitioner argues that no method of review exists under Ohio Revised Code § 2929.03 to ensure a proper weighing and consideration of mitigating factors against aggravating factors. For states imposing the death penalty, the Constitution requires that the state define the crimes for which death may be the sentence in a way that avoids standardless sentencing discretion by using “clear and objective standards” that provide “specific and detailed guidance.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (citations and internal quotation marks omitted). As the district court discussed in detail, the Ohio scheme provides such guidance. First, § 2929.04(A) provides that the death penalty for aggravated murder is prohibited unless one of eight aggravating circumstances can be shown. Second, if defendant is convicted of aggravated murder and an aggravating circumstance can be shown, § 2929.04(B) affords defendant great latitude in presenting mitigating factors. Third, under § 2929.03(D)(1), it is the prosecution’s burden to provide, beyond a reasonable doubt, that the aggravating circumstances outweigh mitigating circumstances. Fourth, if the jury recommends the death sentence, under § 2929.03(D)(3), the court must then independently evaluate the full record to reconfirm that the aggravating circumstances do indeed outweigh mitigating circumstances.
The Ohio scheme does not resemble the scheme in Godfrey, where the “Georgia Supreme Court ... affirmed a sentence of death based upon no more than a finding that the offense was “outrageously or wantonly vile, horrible and inhuman.” ” Godfrey, 446 U.S. at 428, 100 S.Ct. 1759. Specifically, the aggravating circumstances under § 2929.04(A) provide “specific and detailed guidance”, listing murders of the President, Vice President, Governor, law enforcement officers, or children under thirteen; murder for hire; murder to escape accountability for another crime; murder by a prisoner; repeat or mass murder; murder to prevent a criminal witness from testifying; murder by those previously convicted of violent crime; or felony murder where the offender was the principal offender in the commission of aggravated murder or committed the aggravated murder with calculation and design. We find the detailed guidance on aggravating circumstances under § 2929.04(A) to be distinguishable from the ill-defined sentencing scheme in God-frey.
Fifth, Petitioner argues that the Ohio scheme, by requiring proof of aggravating circumstances at the guilt phase of the trial, fails to separate consideration of aggravating circumstances from determination of guilt, thereby failing to narrow the category of death-eligible defendants in violation of Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The Supreme Court, in Lowenfield v. Phelps, 484 U.S. 231, 244-245, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), found:
The use of “aggravating circumstances” is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase.
We find the Ohio requirement that aggravating circumstances be proven at the guilt, rather than penalty, phase of the trial is consistent with Lowenfield.
Sixth, Petitioner argues that his death sentence: (i) violates Article VI of the Constitution, under which every state is bound by terms of international treaties to which the United States is a party; and (ii) violates customary international law. The district court found this claim to be procedurally barred, and for which Defendant had not shown cause and prejudice. However, even merits review of this claim would not have afforded Petitioner habeas relief.
Seventh, Petitioner argues that execution by electrocution violates the Eighth Amendment. Ohio Revised Code § 2949.22(B) provides the option for lethal injection as a form of execution. A recent amendment to Florida law, providing the option for lethal injection in place of electrocution, caused the Supreme Court to dismiss an earlier grant of certiorari to consider whether execution by electrocution violates the Eighth Amendment. Bryan v. Moore, 528 U.S. 1133, 120 S.Ct. 1003, 145 L.Ed.2d 927 (2000). Under § 2949.22(B), execution in Ohio, like Florida, need not occur by electrocution. Therefore, Petitioner’s claim may be redressed by Petitioner’s opting against execution by electrocution under § 2949.22(B).
VI. Media Coverage/Due Process
Defendant argues that extensive media coverage in Ohio of the multiple murders for which Defendant had been indicted, as well as his prior conviction in the Walters case, denied him a fair trial. The Supreme Court has found:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court ... extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a trial atmosphere ... utterly corrupted by press coverage.
Dobbert v. Florida, 432 U.S. 282, 302-303, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (citations and internal quotations omitted).
Petitioner argues that adverse publicity in his case was so pervasive and prejudicial that jury prejudice may be presumed, citing Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). In Irvin, media coverage caused ninety percent of the 320 prospective jurors to have an opinion on defendant’s guilt, ranging from suspicion to near certainty. Irvin, 366 U.S. at 727, 81 S.Ct. 1639. Eight of the twelve jurors who were ultimately empaneled already considered defendant guilty. Id. In Rideau, three jurors had seen a televised “interview” with defendant “in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff.” Rideau, 373 U.S. at 725, 83 S.Ct. 1417. In this case, Petitioner has not alleged that any particular juror was prejudiced by media coverage. Rather, Petitioner argues that such prejudice should be presumed from the extent of media coverage. However, both Irvin and Rideau involved clearly established actual prejudice. Petitioner’s inference, that extensive local media coverage of his prior indictments and murder conviction ensured juror impartiality and violation of due process, is inconsistent with Dobbert. We find that extensive local media coverage of Petitioner’s criminal activity, without more, does not violate due process.
VII. Ineffective Assistance of Trial Counsel
Petitioner argues that his counsel’s failure to independently investigate mitigating evidence in Petitioner’s personal background, and failure to present such evidence at the penalty phase of the trial, constituted ineffective assistance in violation of the Sixth Amendment. Petitioner raised this claim before the Ohio First Appellate District, the Ohio Supreme Court, in Ohio post-conviction proceedings, and in his habeas petition. Therefore, the district court correctly found that this claim is not procedurally barred, which the government does not challenge on appeal. Government Brief on Appeal at 69.
Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for Petitioner to prevail on his ineffective assistance of counsel claim, Petitioner must show both that counsel’s performance was objectively unreasonable under the Sixth Amendment, and that such deficient performance prejudiced Petitioner.
A claim of ineffective assistance of counsel presents a mixed question of law and fact; therefore we review both the state court and district court determinations de novo. Carter v. Bell, 218 F.3d 581, 591 (citing Rickman, 131 F.3d at 1153). Our de novo review includes both the performance and prejudice components of an ineffective assistance claim. Id. (citing Strickland, 466 U.S. at 698, 104 S.Ct. 2052).
“The Constitution requires States to allow consideration of mitigating evidence in capital cases.” Carter, 218 F.3d at 594 (quoting McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)). Consistent with this requirement, Ohio Revised Code § 2929.04(B) provides that in a capital case, if one or more aggravating circumstances have been proved beyond a reasonable doubt, the jury must consider and weigh the “nature and circumstances of the offense, the history, character, and background of the offender,” as well as several enumerated mitigating factors, which include whether defendant suffered from a mental disease or defect at the time the offense was committed.
The district court found that counsel had “honored [Petitioner’s] desire to conduct a mitigation phase hearing with only [Petitioner’s] unsworn statement.” (J.A. at 403.) By simply honoring Petitioner’s stated wishes, the district court found, counsel had not provided ineffective assistance at the penalty phase of the trial.
The district court based its finding, that Petitioner expressly wished to limit his mitigation presentation to his own un-sworn statement, primarily on a trial court colloquy among the judge, Petitioner, and Petitioner’s counsel. This colloquy discussed Petitioner’s decision not to request a pre-sentence investigation or mental examination prior to the penalty phase of the trial:
THE COURT: [Counsel], it is my understanding you have had an opportunity to discuss in length whether or not your client wishes to request a pre-sentence investigation and a mental examination, is that correct?
[COUNSEL]: That’s correct.
THE COURT: Has he made a decision?
[COUNSEL]: It’s my understanding that at this time we do not wish a pre-sentence investigation or a psychiatric examination.
THE COURT: I would like to hear that from your client himself. [Petitioner], do you wish to have a pre-sentence investigation?
[PETITIONER]: No, I don’t.
THE COURT: Do you wish to have a mental examination?
[PETITIONER]: No, I don’t.
THE COURT: Very well ... Any reason that you know of, [Petitioner], why the sentencing portion of this proceeding should not proceed?
[PETITIONER]: One moment.
(conferring with counsel)
[COUNSEL]: Judge, at this time [Petitioner] advises us that he feels that he would like to have some additional time to think about the statement that he would like to make to the jury.
THE COURT: Will you consult with your client and ask him how long of time he thinks is required?
[COUNSEL]: He has indicated just in the previous discussion that he would like to have at least overnight.
THE COURT: Very well. In light of the fact ... of the seriousness of this proceeding, the request is going to be granted. *It will be continued until tomorrow morning.
(J.A. at 2468.) To further support its conclusion that Petitioner wished to limit mitigation to his own unsworn statement, the district court quoted from Petitioner’s un-sworn statement to the jury:
I am not going to draw it out. I decided to cut it short. You all could have been here for the longest time. I told them I preferred] [that] you could go back home today on Sunday after you left church. I am going to cut it short. I am not going to talk for 60 to 70 minutes.
(J.A. at 2478-2479.)
Unlike the district court, we see a gap between Petitioner’s decision to waive a pre-sentence investigation and mental examination and Petitioner’s decision to limit mitigation exclusively to his own unsworn statement. First, the plain language of § 2929.03(D) distinguishes a presentence investigation and a mental examination from “mitigation”. Under § 2929.03(D), where death may be imposed as a penalty, “[a] pre-sentence investigation or mental examination shall not be made except upon request of the defendant.” However, also under § 2929.03(D), a jury weighing aggravating and mitigating factors at the penalty phase of a capital trial may hear not only reports from a presentence investigation and mental examination, but also:
any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing or to any factors in mitigation of the imposition of the sentence of death ... testimony and other evidence that is relevant to the nature and circumstances of the aggravating circumstances the offender was found guilty of committing, • the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code, and any other factors in mitigation of the imposition of the sentence of death, and shall hear the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the offender.
Two additional elements further cloud the record regarding the precise understanding between Petitioner and his counsel as to the extent of mitigation to be presented at the penalty phase of the trial: (i) the trial court’s description to the jury of the procedural outline for the penalty phase; and (ii) counsel’s own closing argument.
At the outset of the penalty phase of the trial, following Petitioner’s waiver of a pre-sentence investigation and mental examination, the trial court explained to the jury that the defense, if it should so choose, would' make an opening statement, followed by a presentation of evidence, which in turn would be followed by a closing argument. The defense waived an opening statement, but then presented both Petitioner’s unsworn statement and counsel’s closing argument. While Petitioner’s wish may indeed have been to limit mitigation to his own unsworn statement, the record does not support such a conclusion, given both the lack of a clear expression of such preference by Petitioner and counsel’s decision to present a closing argument following, and equal in length to, the unsworn statement.
Counsel’s closing argument at the penalty phase of the trial focused on two issues: the circumstantial nature of the Storey murder evidence, and the evils of execution by electric chair. The closing argument did not reference any aspect of Petitioner’s personal history.
First, even assuming Petitioner’s focus on the circumstantial nature of the murder evidence was premised on a “residual doubt” theory, such a mitigation strategy has since been rejected by the Ohio Supreme Court. Second, counsel’s preference for a generalized, mercy-based critique of the electric chair over a particularized account of Petitioner’s social and mental history mirrors the recent Tenth Circuit decision, Battenfield v. Gibson, 236 F.3d 1215, 1229 (10th Cir.2001), where counsel’s “failure to investigate [defendant’s] background, and his failure to explore other readily apparent mitigation possibilities, rendered unreasonable his alleged penalty-phase strategy of focusing on sympathy and mercy.”
We find defense counsel’s presentation at the penalty phase of the trial significant for several reasons. First, it undermines the position that Petitioner had instructed his counsel not to present mitigation evidence in Petitioner’s behalf. Second, it casts doubt on defense counsel’s mitigation strategy under Ohio Revised Code § 2929.04(B). Third, our doubt as to counsel’s mitigation strategy extends to counsel’s ability to competently advise his client about the purpose and strategy of mitigation. As similarly expressed in Bat-tenfield, “[i]n addition to hampering [defense counsel’s] ability to make strategic decisions, [defense counsel’s] failure to investigate [defendant’s background] clearly affected his ability to competently advise [defendant] regarding the meaning of mitigation evidence and the availability of possible mitigation strategies.” Battenfield, 236 F.3d at 1229.
Particularly in light of defense counsel’s presentation at mitigation, the record in this case does not support finding either that Petitioner instructed his counsel not to present evidence at mitigation, or, even assuming such an instruction, that Petitioner had any understanding of competing mitigation strategies. We find the district court’s conclusion regarding mitigation, that Petitioner’s “counsel simply honored [Petitioner’s] informed choices,” baseless. (J.A. at 403.)
If the record indicated a clear, informed assertion by Petitioner that he did not wish his counsel to present any mitigation evidence in Petitioner’s behalf, case law may have supported the district court’s conclusion that counsel, merely respecting the informed wishes of a client, need not have investigated or presented any evidence in connection with Petitioner’s background at the penalty phase of the trial. The Supreme Court has noted:
[The Sixth Amendment] speaks of the “assistance” of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant-not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not.an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.
Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citations omitted).
However, Faretta is not applicable to these facts, as illustrated by the Supreme Court’s emphasis in the case on the defendant’s independent, express and legitimate desire in self-representation:
Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. The trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the ‘ground rules’ of trial procedure.
Faretta, 422 U.S. at 836, 95 S.Ct. 2525. The Faretta decision included a lengthy colloquy between the judge and the unrepresented defendant, discussing defendant’s independent legal research on exceptions to the hearsay rule, the grounds for challenging a juror for cause, and trial procedure generally under the California Codes. Id. at 811, 95 S.Ct. 2525. Defendant in Faretta, a high-school educated man who had previously represented himself in a criminal prosecution, reasoned that he did not want to be represented by a public defender because that office was overloaded with cases. Id. at 807, 95 S.Ct. 2525. Defendant in Faretta faced a criminal charge of grand theft.
Applying Faretta to a capital case, involving a defendant with low intelligence, limited education and an unsettling past, whose strongest demand for self-representation consisted of “No, I don’t” responses when asked if he wanted a pre-sentence investigation and mental evaluation, hollows the Sixth Amendment. Requiring counsel to independently investigate Petitioner’s personal background does not “thrust counsel upon the accused, against his considered wish,” Faretta, 422 U.S. at 820, 95 S.Ct. 2525, especially where, as in this case, the record fails to indicate both Petitioner’s mitigation preferences and the informed consideration supporting such preferences. In Faretta, “the record affirmatively show[ed] that [defendant] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. There is no such record support in this case. Also under Far-etta, a defendant “must first be ‘made aware of the dangers and disadvantages of self-representation.’” Martinez v. Court of Appeal of Calif., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). Again, the record offers no indication that Petitioner was so made aware in this case.
Moreover, the independent obligation of defense counsel to investigate and present mitigating evidence at the penalty phase of a capital trial is well-established by this Court. In Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir.1995), cert. denied 519 U.S. 910, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996), this Court found ineffective assistance of counsel at the penalty phase of a trial where:
the jury was given virtually no information on [defendant’s] history, character, background and organic brain damage-at least no information of a sort calculated to raise reasonable doubt as to whether this young man ought to be put to death. It was not that such information could not be found, or that counsel made a reasoned decision to withhold the information for tactical or strategic reasons. The information was not presented to the jury because counsel never took the time to develop it.
This Court, in Austin v. Bell, 126 F.3d 843 (6th Cir.1997), reenforced Glenn:
The Eighth Amendment requires a jury to consider the circumstances of the crime and the defendant’s background and character during the sentencing phase of a capital trial.... The Constitution also requires defense counsel to reasonably investigate a defendant’s background and present it to the jury. Failure to investigate or present mitigating evidence at sentencing may constitute ineffective assistance of counsel.
Austin, 126 F.3d at 848 (citing Glenn, 71 F.3d 1204, 1206-08) (citations omitted). This Court in Austin then concluded that counsel’s failure to investigate and present mitigating evidence at the penalty phase of the trial, on grounds that counsel “did not think it would do any good,” constituted ineffective assistance. Austin, 126 F.3d at 849. Similarly, this Court in Mapes found that “when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation.” Mapes, 171 F.3d at 426. This Court has also found ineffective assistance where counsel “failed to present the jury with a realistic view of [defendant’s] mental status” due to inadequate preparation for the penalty phase of the trial. Skaggs v. Parker, 235 F.3d 261, 269 (6th Cir.2000).
Further, defendant resistance to disclosure of information does not excuse counsel’s duty to independently 'investigate:
The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility. We find that reluctance on [defendant’s] part to present a mental health defense or to testify should not preclude counsel’s investigation of these potential factors. Under the American Bar Association guidelines for appointed death penalty defense counsel, “[t]he investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered.” American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1.C (1989). We agree, therefore, with the district court’s conclusions that defense counsel made no investigation into [defendant’s] family, social or psychological background and that the failure to do so constituted representation at a level below an objective standard of reasonableness.
Carter, 218 F.3d at 596. Specifically, the defendant in Carter “reacted violently to the idea of a mental health defense [and] never volunteered any information about his family background or childhood [, and] members of [defendant’s] family were uncooperative.” Id. Thus, under Carter, Petitioner’s decision not to request a pre-sentence investigation or mental examination did not relieve counsel of his duty to investigate Petitioner’s background in preparation for the penalty phase of the trial.
It is not only this Court that has strongly established defense counsel’s Sixth Amendment duty to independently investigate in preparation for the penalty phase of a capital trial. In addition to the Tenth Circuit Battenfield decision, the Seventh Circuit has found that “defense counsel’s failure to investigate the mental history of a defendant with low intelligence demonstrates conclusively that [counsel] did not make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant’s fate to the jury and to focus the attention of the jury on any mitigating factors.” Brewer v. Aiken, 935 F.2d 850, 857 (7th Cir.1991) (citation and internal quotations omitted). The Eleventh Circuit, in Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir.1991), found ineffective assistance of counsel where the “ultimate decision that was reached not to call witnesses [for mitigation] was not a result of investigation and evaluation, but was instead primarily a result of counsels’ eagerness to latch onto defendant’s statements that he did not want any witnesses called.”
Counsel in the case at hand failed to present to the jury any aspects of Petitioner’s personal history, which, according to various psychiatric and psychological reports contained in the record, which in turn relied on myriad affidavits, background reports, and mental evaluations, included the following: Petitioner’s grandmother, who was his primary caretaker, abused him both physically and psychologically, as well as neglecting him while running her home as a brothel and gambling house. Petitioner’s grandmother involved him in her voodoo practice by having him kill animals and collect their body parts for use in her magic potions, as well as instructing Petitioner to eat food only prepared by her because she believed that their home was surrounded by enemies who wanted to poison them. Petitioner was exposed to group sex; sometimes including his mother or grandmother, as well as bestiality and pedophilia. Petitioner’s mother spent lengthy periods of time in psychiatric hospitals, and was said to have abandoned Petitioner as an infant by leaving him in a garbage can. Petitioner was admitted to the hospital on two occasions for head injuries. Petitioner dropped out of high school in the ninth grade.
Prior to the penalty phase of the trial, Petitioner’s counsel did not contact either Dr. Johnson or Dr. Hilkey, both of whom had prepared psychological reports of Petitioner in connection with Petitioner’s competency to stand trial in the federal kidnaping case. Drs. Johnson and Hilkey found Petitioner mentally competent to stand trial in the federal kidnaping case, but this finding was limited to the federal kidnaping charge, and did not include any independent investigation into Petitioner’s past. Dr. Hilkey noted that Petitioner had a “need to present himself as emotionally sound” and had “a tendency to project himself in a positive psychological light ... [and] deny psychological problems,” (J.A. at 2710, 2725, 2742-43). Dr. Hilkey also found Petitioner to have elevated test results under the psychopathic — deviant and paranoia categories, as well as a full-scale I.Q. score of 82, falling in the low-normal range, and a verbal I.Q. score of 79, falling at the upper limits of the borderline retarded range.
Dr. Johnson found that Petitioner had probable mixed personality disorder with antisocial, narcissistic and obsessive features. Further, an earlier psychiatric evaluation of Petitioner conducted in 1976 by Leo M. Goldman, M.D., found that Petitioner qualified as a “Borderline Personality”. (J.A. at 895.)
In addition, reports conducted subsequent to the trial, which included independent evaluation of Petitioner’s personal history, diagnosed Petitioner, at the time of the trial, as having borderline personality disorder, a likelihood of organic brain dysfunction, as well as probable manic-depressive psychosis. Drs. Elkun, Ramsden, and Lewis agreed that Petitioner was not competent to represent himself at the penalty phase of the trial.
The Supreme Court has found that counsel’s failure to investigate a defendant’s background in preparation for the penalty phase of a capital trial constituted ineffective assistance, even when counsel presented an alternative argument, highlighting the defendant’s remorse and cooperation with police, in mitigation:
the failure to introduce the comparatively voluminous amount of evidence that [supported defendant] was not justified by a tactical decision to focus on [defendant’s] voluntary confession.... [T]hose omissions ... clearly .demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background.
Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)(citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1980)).
Reasonable investigation by counsel would have produced at least a sampling of the. background information provided above because those reports relied on varied, discoverable sources, including school records, hospital records, prison records, prison medical records, police records, statements by family members and acquaintances, previous psychiatric and psychological evaluations, and pre-sentence investigation reports. While production of the F.B.I. records on Petitioner’s background would have assisted counsel’s investigation, F.B.I. retention of those records did not render counsel helpless.
Under Williams, Carter, Skaggs, Austin and Glenn, we find counsel’s performance, given the combination of Petitioner’s unin-vestigated personal history and the consequently deficient penalty phase closing argument, to be objectively unreasonable. Petitioner’s negative responses to the trial court’s questions regarding the option for a pre-sentence investigation and mental evaluation do not establish Faretta as controlling in the face of substantial precedent by the Supreme Court and this Court on counsel’s independent obligation to investigate the personal background of a defendant in preparation for the penalty phase of a capital trial.
However, for such objectively unreasonable performance to constitute ineffective assistance of counsel, Strickland requires that Petitioner show prejudice, satisfied by showing a reasonable probability that but for such performance the trial outcome would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “Reasonable probability” is “a probability sufficient to undermine confidence in the outcome,” but does not require showing that counsel’s unreasonable performance more likely than not altered the outcome in the case. Id. at 693-94, 104 S.Ct. 2052. “Mitigating evidence unrelated to dangerousness may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.” Williams, 120 S.Ct. at 1516. “[T]he graphic description of [defendant’s] childhood, filled with abuse and privation, or the reality that he was ‘borderline mentally retarded,’ might well have influenced the jury’s appraisal of his moral culpability.” Id. at 1515 (citation omitted). The sentencing phase is likely to be “the stage of the proceedings where counsel can do his or her client the most good,” Glenn, 71 F.3d at 1207 (quoting Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)). It is reasonably probable that informing a jury of a capital defendant’s low I.Q., deprived background, and psychiatric problems would affect the balance of aggravating and mitigating circumstances that had previously resulted in the death sentence. Brewer, 935 F.2d at 858-859.
We find, given Petitioner’s personal background, psychological history, and potential organic brain dysfunction, that it is reasonably probable that the presentation of even a substantial subset of the mitigating evidence detailed above “would have humanized [Petitioner] before the jury such that at least one juror could have found he did not deserve the death penalty.” Carter, 218 F.3d at 592. Therefore, under Strickland, counsel’s objectively unreasonable performance at the penalty phase of the trial, which likely affected the outcome such that confidence in the resulting death sentence is undermined, constituted ineffective assistance in violation of the Sixth Amendment.
VIII. Proportionality Review
Ohio Revised Code § 2929.05(A) requires Ohio appellate courts to review death sentences for proportionality: “[i]n determining whether the sentence of death is appropriate, [the reviewing court] shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.”
The Eighth Amendment bars punishments which are grossly disproportionate to their corresponding crime. See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). “[W]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution-and, in particular, in accord with the Due Process Clause.” Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
Petitioner argues that the State of Ohio, having opted for proportionality review, has not applied such review constitutionally. Specifically, Petitioner claims that the § 2929.05(A) standard of determining whether “the sentence is excessive or disproportionate to the penalty imposed in similar cases” is inadequate because reviewing courts need to base their review on more than mere comparison of death sentences across cases.
However, the Supreme Court has upheld proportionality review under Florida law where court “decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances.” Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Moreover, the Supreme Court has found, “absent a showing that the ... capital punishment system operates in an arbitrary and capricious manner, [a defendant] cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.” McCleskey, 481 U.S. at 306, 107 S.Ct. 1756.
Further, the Ohio Supreme Court’s review of Petitioner’s death sentence under § 2929.05(A) in this particular case, which consisted of citations to “similar” cases involving “aggravated murders which were a part of a course of conduct involving a purposeful killing of or attempt to kill two or more persons”, mirrored the state court review upheld in McCleskey, In McCleskey, the Supreme Court upheld the reviewing state court’s support for its conclusion of proportionality, which consisted of citations to cases “involving generally similar murders.” McCleskey, 481 U.S. at 306, 107 S.Ct. 1756.
Accordingly, we find that, under Proffitt and McCleskey, proportionality review under § 2929.05(A) does not violate due process or the Eighth Amendment. We also find that the Ohio Supreme Court’s reliance on similar cases involving the § 2929.04(A)(5) death penalty specification to support its finding of proportionality in this case did not constitute, under Proffitt and McCleskey, an unconstitutional application of proportionality review.
For the reasons set forth above, we AFFIRM IN PART and REVERSE IN PART the district court decision; we AFFIRM in all respects the judgment of guilt entered on the jury’s guilty verdict, but REVERSE the judgment of the death sentence because of the ineffective assistance of counsel at the penalty phase of the trial. We REMAND the case -to the district court with instructions to issue a writ of habeas corpus vacating Petitioner’s death sentence in Case Number 98 3545 due to ineffective assistance of counsel at the penalty phase of the trial, unless the State of Ohio conducts a new penalty proceeding within 180 days after remand. This decision does not affect any other sentence against Petitioner.
[OPINION BY BATCHELDER, Circuit Judge, type=concurring-in-part-and-dissenting-in-part]
BATCHELDER, Circuit Judge,
Concurrence-Dissent.
I concur in all of the majority opinion except that portion that concludes that Coleman’s death sentence must be reversed because his counsel were ineffective during the penalty phase of the trial.
The sentence of death we are called upon to review in this habeas proceeding was imposed approximately six weeks after a different jury imposed a death sentence on Coleman for the murder of Marlene Walters. This court affirmed the district court’s denial of Coleman’s petition for a writ of habeas corpus in that case. Coleman v. Mitchell, 244 F.3d 533 (6th Cir.2001). In that case, we held that:
Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman’s direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices.
Id. at 545 (first emphasis added).
In the voluminous record presented to this court in the habeas proceeding before us today, Coleman includes a large collection of newspaper articles detailing the proceedings in the Walters case. Among those articles are accounts of Coleman’s having told reporters that he was “real surprised” when the Walters jury imposed the death penalty, and that he “didn’t expect it at' all.” Also in the voluminous record is Coleman’s initial state-court post-conviction petition. Paragraph 364 of that petition, which is part of his fifty-sixth claim for relief, is Coleman’s claim that he “specifically, consistently and adamantly” refused to cooperate in any way with any investigation into mitigation.
It is true that the record from Coleman’s trial for the Storey murder does not reflect that Coleman was actually advised during that trial of his options with regard to the penalty phase of the trial. However, it is also clear from the materials Coleman has presented to this habeas court, as well as from this court’s opinion in the companion habeas case, that he was well aware of those options; that he was competent to make the choices he made; and that he certainly knew by the time the guilty verdict in the Storey case was handed down that he not only could but should provide the jury some kind of reason not to impose another death sentence. He affirmatively waived his right to do that.
Even if his counsel were required under the reasoning of Carter v. Bell, 218 F.3d 581 (6th Cir.2000), to undertake an independent investigation and to present evidence in mitigation, I would hold, for essentially the same reasons stated in the companion habeas case, see Coleman v. Mitchell, 244 F.3d at 545, that counsels’ conduct was not deficient here. I acknowledge that in this case Coleman did not actively participate in the trial, as he did in his trial for the Walters murder, but he clearly knew that had he chosen to do so, he could have. The record in this case does not show that he ordered his counsel to pursue the residual doubt approach here, as he did in the other case, and I acknowledge that this is a significant distinction between the two cases. I believe, however, that the record here clearly demonstrates that the actions of Coleman’s trial counsel-who did not represent him in the Walters trial but were representing him in the Storey matter during the entire time that the Walters trial was taking place-were “based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).
Even if counsels’ performance here was deficient, I would find that there has been no showing of prejudice sufficient to meet the second prong of Strickland. Coleman was required to show that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Coleman has wholly failed to make this showing. The jury in the Storey case convicted Coleman of aggravated murder of a child, with the specification that the aggravated murder was part of a course of conduct involving a purposeful killing of or attempt to kill two or more persons. That jury had before it the evidence of Coleman’s murderous course of conduct, described by the Ohio Supreme Court as “a unique, identifiable plan of criminal activity.” State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622, 626 (1989). The majority opinion here correctly notes that this plan-during the brief span of the summer of 1984 — included:
the abduction and murder by ligature strangulation of a nine-year old African American girl in Wisconsin; car theft in Illinois; abduction of two nine- or ten-year old African American girls in Indiana, one of whom was murdered by ligature strangulation; murder of a twenty-five-year old African American woman in Indiana by ligature strangulation; car theft and battery in Michigan; murder, in Ohio, of an African American woman and her nine-year-old daughter by strangulation, whose family bracelet was later found under the body of Sto-rey; car theft and battery in Ohio; and an additional murder and car theft in Ohio.
Supra majority at 440 n. 9. In my view, there is no probability — let alone a reasonable probability — that the jury would have decided against imposing the death penalty had it been aware of the evidence of Coleman’s miserable childhood that he now claims his counsel should have unearthed in spite of his adamant obstruction and refusal to cooperate, and presented to the jury over his objections.
Nor do I think there is any probability that requiring Coleman to submit to a psychological or psychiatric examination and presenting the results of such an examination to the jury would have produced a different result. Coleman was found competent to assist his counsel at trial. He was therefore competent to make the determination whether he wanted to have a presentence examination or a mental examination. Coleman refused to have any examination and then argued to the jury— without fear of any current expert testimony or evidence to the contrary — that he was in fact mentally ill. Coleman was entitled to make that decision, but he is not entitled to a finding of Strickland prejudice because the result of that decision was not what he had hoped for.
Finally, the record simply does not support the majority opinion’s conclusion that the fact that Coleman’s trial counsel made a closing argument to the jury undermines the State’s position that Coleman instructed his counsel not to present mitigation evidence. Counsel’s closing argument did not even mention mitigation evidence. It was a dramatic and impassioned plea not to subject Coleman to the electric chair. It was wholly consistent with Coleman’s own attempt to persuade the jury that if they voted for the death penalty for him, it would be that much easier for them to impose the death penalty the next time they were called upon to make such a decision.
I therefore respectfully dissent from that portion of the majority’s opinion holding that the death sentence must be reversed because of ineffective assistance of counsel at the penalty phase of the trial.
Petitioner was found guilty of aggravated murder that was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender, which falls under the Ohio Revised Code § 2929.04(A)(5) death penalty specification.
In February of 1995, the district court granted Petitioner’s motion to consolidate Case Number C-3-94-533 (federal kidnap-ing), Case Number C-l-94-863 (Storey murder), and Case Number C-l-94-864 (Walters murder). In May of 1998, this Court severed the consolidated cases, assigning Appeals Case Number 98-3545 to Case Number C-l-94-863, and Appeals Case Number 98-3546 to Case Number C-1-94-864. Appeals Case Number 98-3545, the Storey murder, is the case at hand. This Court has affirmed the district court decision in Appeals Case Number 98-3546. Coleman v. Mitchell, 244 F.3d 533 (6th Cir.2001).
Petitioner was transferred from federal to state custody for execution of the Ohio sentences while his direct appeals from his state court convictions were pending.
See State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622, 626 n. 1 (1989).
Of the eight § 2254(d) conditions, Petitioner's argument may potentially appeal to several, namely that: (1) the merits of the factual dispute were not resolved in the State court hearing; (2) the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) the material facts were not adequately developed at the State court hearing; (6) the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) the applicant was otherwise denied due process of law in the State court proceeding.
For example, defendant in Jones sought to obtain "three categories of documents from his trial counsel: (1) copies of the notes [defendant] had given to his lawyer at the Snoho-mish County Jail on December 8, 1988; (2) copies of reports of pretrial interviews conduct by his lawyer and the defense investigators; and (3) copies of all documents which discuss or otherwise relate to the prosecutor’s plea offer.” Jones, 114 F.3d at 1009. In Cornil, defendant, in seeking an eviden-tiary hearing on the issue of ineffective assistance of counsel at the penalty phase of the trial, in addition to providing an affidavit from a probation officer and a psychological report, asserted “that during the month that elapsed between the jury verdict and the pre-sentencing hearing, his attorney met with him for just five minutes ... [and] that his trial attorney had not requested a mental health diagnostic examination before sentencing ... despite having previously deemed it necessary to move for the appointment of a mental health expert pursuant to Ariz. R.Crim. P. 11 to explore [defendant’s] competency to stand trial.” Correll, 137 F.3d at 1412-13.
In the context of a testifying federal prosecutor, the Second Circuit has found that while testimony by any member of a United States Attorney’s Staff is discouraged, such members are not disqualified as witnesses in cases where they play no other role. See United States v. Armedo-Sarmiento, 545 F.2d 785, 793 (2d Cir.1977).
Ohio Revised Code § 2945.59 provides that "any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved” where such elements are material in a criminal case.
As detailed in both the Ohio Supreme Court and district court opinions, Petitioner's criminal activity in the summer of 1984 included: the abduction and murder by ligature strangulation of a nine-year old African American girl in Wisconsin; car theft in Illinois; abduction of two nine- or ten-year old African American girls in Indiana, one of whom was murdered by ligature strangulation; murder of a twenty-five-year old African American woman in Indiana by ligature strangulation; car theft and battery in Michigan; murder, in Ohio, of an African American woman and her nine-year-old daughter by strangulation, whose family bracelet was later found under the body of Storey; car theft and battery in Ohio; and an additional murder and car theft in Ohio. See Coleman, 544 N.E.2d at 626 n. 1.
Merits review of Petitioner's claims would not have affected the outcome of our decision. Under United States v. Carroll, 26 F.3d 1380, 1387 (6th Cir.1994), non-flagrant improper prosecutorial remarks may give rise to a new trial only if proof of defendant’s guilt was not overwhelming, defendant objected to the improper remarks at trial, and the court failed to cure the error with an admonishment to the jury. At the very least, Petitioner did not object to the remarks at trial, and thus would not be entitled to reversal under Carroll.
Racial Imbalance on Death Row Prompts Call for Jury to Get Data, THE PLAIN DEALER, August 23, 1999, 1999 WL 2378052.
Merits review of Petitioner’s international treaty and customary international law claim would only have observed that to date, the claim that "international law completely bars this nation’s use of the death penally ... is unsupportable since the United States is not party to any treaty that prohibits capital punishment per se, and since total abolishment of capital punishment has not yet risen to the level of customary international law.” United States v. Bin Laden, 126 F.Supp.2d 290, 294 (S.D.N.Y.2001) (citation omitted). Customary international law, derived from the law of nations, is defined as the "general and consistent practice of states followed by them from a sense of legal obligation.” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir.1992) (quoting Restatement (Third) of the Foreign Relations Law of the United States § 102(2)(1987)).
Ohio Revised Code § 2949.22 was amended in 1993 to provide the option for lethal injection as a form of execution. Rev.Code § 2949 .22(B). At the time of Petitioner's trial, in 1985, electrocution was the only available form of execution under Ohio law.
"Residual doubt is not an acceptable mitigating factor under [Ohio Revised Code § ] 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.” State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1123 (1997).
The direct relationship between the quality of background investigation and the quality of mitigation strategy is well-settled. "[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. "The determination as to whether counsel’s trial strategy amounts to ineffective assistance of counsel should be made with respect to the thoroughness of the pretrial investigation that counsel conducted.” White v. McAninch, 235 F.3d 988, 995-96 (6th Cir.2000). "[Cjounsel must make some effort at independent investigation in order to make a reasoned, informed decision as to [the utility of mitigating factors offered by defendant].” Carter, 218 F.3d at 596. Counsel "failed to conduct a constitutionally adequate pretrial investigation into potential mitigation evidence which, in turn, hampered his ability to make strategic choices regarding the [penalty phase] proceedings.” Battenfield, 236 F.3d at 1234.
Similarly, this Court has recently found, in Coleman v. Mitchell, 244 F.3d 533, 545 (6th Cir.2001) [hereinafter "Coleman /”], that where counsel explained the various penalty phase mitigation options to the defendant, and where the defendant clearly instructed counsel to proceed with a residual doubt theory in mitigation, counsel was not ineffective for following the defendant's clear and informed instruction. Conversely, the ineffective assistance analysis in this case concerns two elements not at issue in Coleman I. First, whether Petitioner's purported instruction to counsel, to limit mitigation to Petitioner’s own unsworn statement, was given at all. Second, assuming Petitioner gave such an instruction, whether the instruction was informed by counsel’s presentation of various mitigation strategy options. Unlike Coleman I, the ineffective assistance of counsel claim in this case raises different questions, specifically the substance and informed nature of Petitioner's purported instruction to counsel, and requires review of a different record. Accordingly, Coleman I does not control Petitioner’s ineffective assistance of counsel claim in this case.
Leonard Elkun, M.D., James R. Evans, Ph. D., and Mark Ramsden, Ph.D., reached this conclusion in separate reports. Dr. Elkun commented that Petitioner was, in his opinion, "one of the most exemplary cases [of borderline personality disorder] I have seen in quite some time ... one sees a childhood and infancy and early adulthood replete with abuse, dysfunctionality, disruptive environment ... often an individual who’s left to fend for themselves, and to establish ... their own rules if, in fact, they establish any.” (J.A. at 931.)
Report by Dr. Evans.
Report by Dorothy Otnow Lewis, M.D.
Dr. Evans did not comment on Petitioner's competency to represent himself, but noted that “persons suffering from borderline personality disorder usually show extremes of emotion, impulsive behaviors and transient psychotic episodes characterized by delusions, hallucinations and disassociation. In [Petitioner's] case, abuse of alcohol and other drugs, borderline personality disorder and brain dysfunction, in combination, almost guarantee that he would have extremes of behaviors.” (J.A. at 874.)
Coleman, 544 N.E.2d at 634.
Under Ohio law, Coleman alone could have requested such examinations. See Ohio Rev. Code Ann. §§ 2929.024 and 2929.03(D)(1)(West 2001).