Coleman v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Karen M. Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana

Kathleen Cleary Christopher L. Lafuse
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana
Robert E. Lancaster
Special Assistant to the
Public Defender
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

ALTON COLEMAN, )
)
Appellant (Defendant Below), )
)
v. ) No. 45S00-9203-PD-158
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard J. Conroy, Special Judge, with
Magistrate T. Edward Page, Presiding
Cause No. 1CR-203-1184-842

December 29, 2000

SHEPARD, Chief Justice.
Alton Coleman was last before us in a proceeding for post-conviction
relief. We affirmed the trial court’s denial of relief, holding among
other things that Coleman was not denied ineffective assistance of counsel.
The U.S. Supreme Court granted certiorari, and remanded to us for
reconsideration in light of Williams v. Taylor, 120 S.Ct. 1495 (2000).

On April 11, 1986, a jury found Alton Coleman guilty of murder,
attempted murder and child molesting. Coleman and a companion lured two
young girls into a wooded area, and bound and gagged them. Coleman v.
State, 558 N.E.2d 1059, 1060 (Ind. 1990) (“Coleman I”). They stomped and
strangled the seven-year-old child to death after she began crying. They
strangled and sexually brutalized the nine-year-old and left her for dead,
though she survived. Id. Following the jury’s recommendation, the court
sentenced Coleman to death. We affirmed on direct appeal. Id.
Subsequently, we affirmed the denial of Coleman’s petition for post-
conviction relief. Coleman v. State, 703 N.E.2d 1022 (Ind. 1998) (“Coleman
II”).

The U.S. Supreme Court granted certiorari, Coleman v. Indiana, 120
S.Ct. 1717 (2000), and remanded to this Court for reconsideration in light
of Williams, 120 S.Ct. 1495, in which Williams claimed, as does Coleman,
ineffective assistance of counsel (“IAC”). Williams, 120 S.Ct. at 1499.[1]

In Williams, the U.S. Supreme Court reversed the Virginia Supreme
Court and vacated Williams’ death sentence because Williams’ trial counsel
failed to adequately investigate and present mitigating circumstances
during the penalty phase of the trial. Id. at 1516. Applying the two-part
IAC test established in Strickland v. Washington, 466 U.S. 668 (1984), the
U.S. Supreme Court held that this failure amounted to constitutionally
deficient performance under the Sixth Amendment, and also prejudiced the
defense to the point of depriving Williams of a fair trial with a reliable
result. Id. at 1511, 1515.

The Williams opinion clarified the Court’s earlier decision in
Lockhart v. Fretwell, 506 U.S. 364 (1993), emphasizing that Lockhart did
not modify the two-pronged Strickland analysis that focuses on (1)
deficient performance by counsel and (2) resulting prejudice. Williams,
120 S.Ct. at 1512. In Lockhart, the defendant sought relief based on his
attorney’s failure to make an objection at his sentencing proceeding.
Lockhart, 506 U.S. at 366. The objection was sustainable under case law at
the time of the proceeding, but that law was later overruled. The U.S.
Supreme Court refused to grant the defendant a “windfall” based on
fortuitous timing, and held that he had suffered no prejudice within the
meaning of Strickland because the sentencing result was neither unreliable
nor fundamentally unfair. Id. This set of circumstances was inapplicable
in Williams, 120 S.Ct. at 1513, and it is similarly inapplicable here.

The Williams Court clarified that the focal concern in Lockhart, i.e.
whether the result of the proceeding was fundamentally fair, is not a
discrete third prong of the IAC analysis. Williams, 120 S.Ct. at 1512.
Rather, it enters into the determination of whether the likelihood of a
different outcome qualifies as prejudice in the Strickland sense. Id.

In his petition for post-conviction relief, Coleman claimed
ineffective assistance by both his trial and his appellate counsel.
Coleman II, 703 N.E.2d at 1026. We rejected these claims, citing and
applying the two-prong Strickland standard but also referring to the caveat
in Lockhart that “a different outcome but for counsel’s error will not
constitute prejudice if the ultimate result reached was fair and reliable.”
Id. at 1028 (citations omitted). We now revisit the IAC issues raised by
Coleman, applying the two-prong Strickland standard based on the most
recent guidance provided in Williams. Our holdings on all other issues
remain the same, and they stand.

The Standard of Review

As a threshold matter, we reject Coleman’s claim that he is entitled
to de novo review because he presents mixed questions of law and fact.
(Appellant’s Remand Br. at 4.) Coleman is correct that the U.S. Supreme
Court said in Strickland that “both the performance and prejudice
components of the ineffectiveness inquiry are mixed questions of law and
fact.” Strickland, 466 U.S. at 698. In Williams, however, the Court
accepted that “[t]reating the prejudice inquiry as a mixed question of law
and fact, the Virginia Supreme Court accepted the factual determination
that available evidence in mitigation had not been presented at the trial .
. . .” Williams, 120 S.Ct. at 1501.

We see nothing in Williams to alter the standard of review we apply to
appeals of judgments denying post-conviction relief. We will reverse a
negative judgment after a non-jury trial only if “the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by
the postconviction court.” Woods v. State, 701 N.E.2d 1208, 1210 (Ind.
1998)(citing Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind. 1995)),
cert. denied, 120 S.Ct. 150 (1999).[2] We accept findings of fact unless
they are clearly erroneous, although we give conclusions of law no
deference. Woods, 701 N.E.2d at 1210. The post-conviction court is the
sole judge of the weight of evidence and credibility of witnesses. Id.

I. Ineffective Assistance of Trial Counsel

The post-conviction court held that Coleman’s claim of ineffective
assistance of trial counsel was waived because it was not raised on direct
appeal. Coleman II, 703 N.E.2d at 1027. Subsequently, however, we held in
Woods v. State, 701 N.E.2d at 1220, that Sixth Amendment claims of
ineffective assistance of trial counsel not raised on direct appeal may be
raised in post-conviction proceedings. Therefore, in Coleman II, we
addressed Coleman’s claim of ineffective assistance of trial counsel, but
rejected it as a matter of law because Coleman’s offers of proof failed to
establish any of his specific assertions. Coleman II, 703 N.E.2d at 1028.
We revisit those conclusions below, applying the two-pronged Strickland
analysis.

A. Failure to Investigate and Present Mitigating Evidence at the
Penalty and Sentencing Phase. Coleman argues that his lawyer was
ineffective in failing to present potentially mitigating evidence related
to his troubled childhood environment and to his mental illness and
personality disorder. (Appellant Remand Br. at 11-14.) On the latter
issue, Coleman argues that he was prejudiced by his counsel’s failure to
present evidence of his personality disorder and brain dysfunction. (Id.
at 13-14.) The post-conviction court, however, after hearing extensive
evidence on both sides of the issue, found that Coleman does not suffer
from either disorder. Coleman II, 703 N.E.2d at 1032, (P-C.R. at 1744-45).
Applying a pure Strickland analysis, the post-conviction court concluded
that, had this evidence been presented, it would not have made a difference
to the outcome of the trial or sentencing. Coleman II, 703 N.E.2d at 1032,
(P-C.R. at 1744). We agree that Coleman suffered no prejudice under
Strickland from his counsel’s failure to argue mental defect or personality
disorder as a mitigating factor in sentencing.[3]

Coleman’s claim rests, then, on the mitigating evidence he offered at
the post-conviction proceeding relating to his troubled childhood. As
noted in Coleman II, 703 N.E.2d at 1031, this court has consistently held
that evidence of a difficult childhood warrants little, if any, mitigating
weight. See Peterson v. State, 674 N.E.2d 528, 543 (Ind. 1996) (mitigating
weight warranted by a difficult childhood is in the low range), cert.
denied, 522 U.S. 1078 (1998); Loveless v. State, 642 N.E.2d 974, 977 (Ind.
1994) (some such evidence is occasionally declared not mitigating at all).

Nonetheless, it is certainly true that “evidence about the defendant’s
background and character is relevant because of the belief, long held by
this society, that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and mental
problems, may be less culpable than defendants who have no such excuse.”
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown,
479 U.S. 538, 545 (1987) (O’Connor, J. concurring)). Childhood abuse and
privation may, along with other mitigators, “influence[] the jury’s
appraisal of [] moral culpability.” Williams, 120 S.Ct. at 1515.

Unlike Coleman’s claim of mental illness and personality disorder, we
have no findings of fact from the post-conviction court regarding the
evidence Coleman offered about the circumstances of his youth. At the post-
conviction proceeding, Coleman offered testimony, inter alia, that his
mother was a gambler and a prostitute who “starved, beat & hustled” her
children. (P-C.R. at 3683, 3793-94.) Coleman spent most of his childhood
in conditions of squalor, living with a grandmother who practiced voodoo
and who told Coleman that his mother had discarded him in a trash can when
he was born. (P-C.R. at 3717, 3772, 3681.) The grandmother verbally
vilified and physically beat Coleman. (P-C.R. at 3760, 3684.) She
addressed him by his widely-known nickname “Pissy” because Coleman had
bedwetting problems through his early teens. (P-C.R. at 3684.) In
summary, Coleman proffered evidence that he grew up neglected and abused.

We cannot effectively evaluate the credibility of this evidence from a
cold record. We therefore assume its truth for purposes of analysis, to
determine whether a remand for factual findings is necessary.

We begin with the second prong of Strickland, the issue of
prejudice.[4] The focus of this inquiry is whether, had Coleman’s counsel
offered evidence of Coleman’s troubled childhood at the penalty phase of
the trial, there is a reasonable probability that the result would have
been different, i.e., that Coleman would have avoided a death sentence.
Strickland, 466 U.S. at 695. We look to the factual circumstances in
Williams for guidance in our assessment.

Omitted Mitigating Evidence. In Williams, counsel failed to present
evidence
that Williams’ parents had been imprisoned for the criminal neglect of
Williams and his siblings, that Williams had been severely and
repeatedly beaten by his father, that he had been committed to the
custody of the social services bureau for two years during his
parents’ incarceration (including one stint in an abusive foster
home), and then, after his parents were released from prison, had been
returned to his parents’ custody.

Williams, 120 S.Ct. at 1514. In addition, Williams was “borderline
mentally retarded” and did not advance beyond the sixth grade in school.
Id. Williams’ counsel also failed to offer prison records and credible
testimony showing that Williams thrived in a structured prison environment.
Id.

Coleman, by contrast, has offered no evidence that he would be a model
prisoner. In fact, he was charged with raping another inmate, and
convicted of the lesser offense of battery, while he was incarcerated in
1976. (T.R. at 2620.) Nor has Coleman offered evidence of retardation.
He attended school through the ninth grade, (P-C.R. at 4121), and in a
competency hearing held prior to his trial, two court-appointed
psychiatrists found Coleman to be above average in intelligence, (T.R. at
2631.) The only omitted mitigation evidence that Coleman offers is that
he, like Williams, suffered a childhood “filled with abuse and privation.”
Williams, 120 S.Ct. at 1515; Coleman II, 703 N.E.2d at 1031.

Sentencing Evidence Presented. In Williams, the defendant struck his
victim with a mattock and took a small sum of money from the victim’s
wallet after the victim refused Williams’ loan request. Williams, 120
S.Ct. at 1499. Williams was convicted and sentenced to death after he
spontaneously confessed to the murder, which had been written off as a
death from blood alcohol poisoning. Id. Williams expressed remorse, and
cooperated with the police. Id. Unlike Williams, Coleman did not confess,
did not express regret, and did not cooperate in the investigation.

In both Williams and Coleman, the State offered evidence of the
defendants’ other crimes. Williams had previously committed armed robbery,
burglary, grand larceny, arson, two auto thefts, and two violent assaults
on elderly victims. Williams, 120 S.Ct. at 1500. Coleman’s sentencing
court similarly noted Coleman’s extensive record of violent criminal
activity. This included convictions for robbery and battery, and pending
charges for rape, child molesting, two kidnappings, multiple robberies and
burglaries, three assaults, two attempted murders, and seven murders.
(T.R. at 2614, 2621.) Also, unlike in Williams, Coleman had two prior
murder convictions. (T.R. at 2419-20.)

As mitigating evidence, Williams’ counsel primarily emphasized that
Williams had confessed and cooperated. Williams, 120 S.Ct. at 1500.
However, counsel then inexplicably conceded in closing argument that “it
was difficult to find a reason why the jury should spare Williams’ life.”
Id.

Coleman’s counsel presented no mitigating evidence, but relied instead
on a general religious and moral argument against the death penalty and a
request for mercy.[5] (T.R. at 2522, 2570-71.) Coleman’s own statement at
his sentencing hearing focused on the fairness of his trial, and ended
with a request for mercy. (T.R. at 2582-87.)

Totality of the Evidence. The dispositive question here, as in
Williams, is what effect the totality of the omitted mitigation evidence
would have had on Coleman’s sentence. Williams, 120 S.Ct. at 1515. In
Williams, the U.S. Supreme Court noted that “[t]he circumstances recited in
[Williams’] several confessions are consistent with the view that in each
case his violent behavior was a compulsive reaction rather than the product
of cold-blooded premeditation.” Williams, 120 S.Ct. at 1515-16. Coleman’s
actions tell a different story. He and his companion lured two young girls
into the woods to inflict egregious harm upon the children for their own
sexual pleasure. Coleman neither confessed nor expressed regret for this
predatory attack. Besides having committed a particularly atrocious crime,
Coleman faced aggravating factors not present in Williams: two prior
capital murder convictions.

Turning to the omitted mitigators, counsel in Williams could have
pointed to three factors: childhood abuse and neglect, borderline mental
retardation, and a record of successful incarceration. Coleman offers only
one additional mitigator: a difficult childhood.

Because Williams “turned himself in, alerting police to a crime they
otherwise would never have discovered,” Williams 120 S.Ct. at 1515,
Williams presented a much closer sentencing decision based on the original
evidence presented. It is unsurprising, then, that when the Williams post-
conviction judge (who had imposed the original sentence) considered the
three omitted mitigating factors, that judge concluded that it was
reasonably probable that this information would have tipped the scales
against a death sentence. Id.

Here, with a predatory and unrepentant defendant who had two prior
capital murder convictions and no mitigating circumstances, the sentencing
decision was much more clear-cut. The jury returned its recommendation in
favor of the death penalty within two hours, (T.R. at 2539), and the trial
court discussed at length the numerous compelling aggravators and lack of
mitigating circumstances, (T.R. at 2618-37).

Taking into consideration all the evidence, both presented and
omitted, and our previous holdings that a difficult childhood carries
little mitigating weight, we conclude that it is extremely unlikely that
the sentencing result would have been different had Coleman’s trial counsel
presented credible evidence of Coleman’s childhood abuse and neglect.
Because we find no reasonable probability that Coleman would have avoided a
death sentence based on the omitted evidence, Coleman’s claim of IAC at the
penalty and sentencing phase of his trial fails under the second prong of
Strickland.

B. Mystery Hairs. Coleman’s trial counsel failed to present
evidence that two hairs in a rape kit containing evidence collected from
one victim belonged to neither Coleman nor his co-defendant. Coleman II,
703 N.E.2d at 1028. We concluded in Coleman II that, although there was no
apparent strategic reason for not presenting this evidence, it did not
constitute prejudice in the Strickland sense because of the magnitude of
other evidence pointing to Coleman’s guilt. Id. We also cited Lockhart
and found that the failure did not render Coleman’s conviction unfair or
unreliable. Id. at 1028-29. Under Strickland alone, we continue to hold
that there was no reasonable probability that presentation of this evidence
would have changed the result of the proceeding.

C. Other Claims. Coleman offers no argument on remand in support
of his other claims of ineffective assistance of trial counsel. We take
our earlier decisions on these contentions to be unaffected by the remand
order, as his present lawyers apparently do.

II. Ineffective Assistance of Appellate Counsel

Coleman claimed IAC due to his appellate counsel’s failure to raise
the issue of trial IAC and to challenge the trial court’s sentencing order.
Coleman II, 703 N.E.2d at 1032. We allowed Coleman to raise the former
issue in post-conviction review. Id. at 1027-28. We reviewed the latter
issue sua sponte on direct appeal. Id. at 1032. Therefore, Coleman
suffered no prejudice on these points.

Coleman also claimed appellate IAC for failure to challenge certain
jury instructions and to challenge denial of funds for an eyewitness
identification expert. Id. at 1032-33. The post-conviction trial court
rejected these, along with all other, claims of appellate IAC, based purely
on the two-pronged Strickland analysis. (P-C.R. at 1713-43.) We agreed in
Coleman II, without reference to or consideration of Lockhart, that Coleman
failed to prove IAC on these issues. Coleman II, 703 N.E.2d at 1032-33.

Therefore, we continue to hold that Coleman was not denied effective
assistance of appellate counsel in violation of the Sixth Amendment.

Conclusion

We affirm the judgment of the post-conviction court.

Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., not participating.

-----------------------
[1] The U.S. Supreme Court’s order of remand directs us to Williams v.
Taylor, 120 S. Ct. 1479 (2000). However, that case addresses issues not
presented in Coleman II. We have assumed that the order intended to direct
us to Williams v. Taylor, 120 S.Ct. 1495 (2000), decided the same day,
which does deal with issues relevant to Coleman II.
[2] See also Harrison v. State, 707 N.E.2d 767, 774 (Ind. 1999)(“We will
disturb the decision only if the evidence is without conflict and leads
only to a conclusion contrary to the result of the post-conviction court.”)
(citation omitted), cert. denied, 120 S. Ct. 1722 (2000); Miller v. State,
702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied, 120 S.Ct. 806 (2000).
[3] We note also that the trial court ordered Coleman’s transfer to a
diagnostic center for a psychological and psychiatric evaluation prior to
sentencing, to better determine “the nature of the offender . . . .” (T.R.
at 2619.) Coleman objected, however, and the evaluation did not occur.
(Id.)
[4] The U.S. Supreme Court advised in Strickland that “[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be
followed.” Strickland, 466 U.S. at 697.
[5] At the sentencing hearing, Coleman’s counsel pointed out that Coleman
was already under two death sentences and questioned the need for an
additional death sentence given that Coleman could only die once. (T.R. at
2571.) Counsel also argued that Coleman’s life should be spared in the
interests of studying the criminal psyche. (T.R. at 2576-77.) We do not
count either argument as mitigating.