Attorneys for Appellant

Susan K. Carpenter

Public Defender of Indiana

Indianapolis, Indiana

Ken Murray

Columbus, Ohio

Janet S. Dowling

Evans, Dowling & Youngcourt, P.C.

Indianapolis, Indiana

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Christopher L. LaFuse

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

DEBRA DENISE BROWN,

	Appellant (Petitioner Defendant below),

	v.

STATE OF INDIANA,

	Appellee (RespondentPlaintiff  below).

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)	

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)	Supreme Court No.

)	45S00-9212-PD-939

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	APPEAL FROM THE LAKE SUPERIOR COURT

	The Honorable Richard J. Conroy, Judge

	Cause No. 1CR-203-1184-842

	ON DIRECT APPEAL FROM THE DENIAL OF POST-CONVICTION RELIEF

	July 17, 1998

SULLIVAN,  Justice.

	Petitioner Debra Denise Brown appeals the denial of post-conviction relief with respect to her convictions for Murder1 and Attempted Murder,2 and her sentence of death.3  We earlier affirmed these convictions and this sentence on direct appeal.  Brown v. State, 577 N.E.2d 221 (Ind. 1991), reh’g denied, 583 N.E.2d 125, cert. denied, 506 U.S. 833 (1992).  We now affirm the denial of  post-conviction relief.

	Background

	Debra Denise Brown and her companion, one Alton Coleman, were convicted and sentenced

to death in separate proceedings for stomping a seven-year old girl to death and attempting to choke

a nine-year old girl to death with a belt after sexually assaulting the latter.  These crimes were part

of a crime spree which also took Brown and Coleman to Ohio, Michigan and Illinois.  About a

month after the Indiana crimes were committed, Brown was apprehended in Illinois and turned over to the FBI, which had been actively engaged in the investigation.  

	Our discussion infra and our opinions on Brown’s and Coleman’s direct appeals contain additional details of their crimes, trials, and claims for relief.  See Brown, 577 N.E.2d at 224-25; Coleman v. State, 558 N.E.2d 1059, 1060-61 (Ind. 1990), cert. denied, 501 U.S. 1259 (1991).

	Discussion

	I

	Brown contends that she is entitled to post-conviction relief because the State violated its

obligation to disclose material exculpatory evidence by failing to disclose prior to her trial certain

psychological profiles and related materials compiled by the FBI.  As noted in Background, supra, Brown and Coleman had been interstate fugitives.  As such, the FBI prepared a psychological profile

and related material on Brown to assist in her capture.  During preparation for Brown’s trial, Indiana

authorities had in their possession a substantial volume of FBI materials.  When the FBI sought to

have these materials returned, Brown’s trial counsel protested, contending that he had not yet had

time to review all of the materials.  Upon a representation from the State that the files contained no

exculpatory material, the trial judge permitted the materials to be returned to the FBI.

	In preparation for post-conviction proceedings, Brown obtained four documents in the

possession of the FBI which she contends are exculpatory.  Brown is, of course, correct that the

State has an affirmative duty to disclose evidence favorable to a criminal defendant.  Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady v. Maryland, 373 U.S. 83 (1963)).  Brown raises several interesting questions as to whether the State had a pre-trial obligation to disclose these four

documents.  However, an allegation of a Brady violation requires a demonstration that the undis closed favorable evidence “could be reasonably taken to put the whole case in such a different light

as to undermine confidence” in the trial court’s judgment.  Kyles, 514 U.S. at 435. We elect to proceed to that inquiry first.  Because we find that these four documents could not be reasonably

taken to put the whole case in such a different light as to undermine confidence in the trial court’s

judgment, we hold that Brown is not entitled to post-conviction relief on this contention.4

	We note first that while Brown seeks to have both her convictions and her sentence reversed

on the basis of this claim, she makes no specific argument as to how these four documents undermine

confidence in the jury’s guilty verdicts.  Rather, her specific claims are that these documents contain

important evidence of her psychological domination and control by Coleman, mitigating circum

stances which should have been considered by the jury during the penalty phase.

	Certainly the subject matter of these four documents comprise mitigating circumstances

appropriate for consideration in a death penalty case.  Our death penalty statute specifically itemizes

the domination and control of another person as a mitigating circumstance.5  Acting under the influence of an extreme emotional disturbance is another statutory mitigating circumstance.6  And the mental health of the defendant is frequently considered as a mitigating circumstance under the

“catch-all” mitigator.7  These four documents implicate each of these circumstances.

	The first FBI document, Brown’s Exhibit 31, states in pertinent part:

	Coleman has a violent temper, and when he is upset he is uncontrollable. *** Ever

since Coleman’s mother died of cancer, Coleman seems to have gone off his rocker.

*** Debra Denise Brown has lived with Coleman and his blind grandmother for the

past two years.  Brown has lost about 35 pounds during this time.  She has been

virtually a prisoner in the house.  If she left without Coleman, he would beat her. 

During [an] interview with FBI agents, Brown was very docile.  She admitted that

scars and scratches on her face were from Coleman.  It is believed that she is com

pletely under the control of Coleman.

(R. at 1894-96.)8  The second and third FBI documents, Brown’s Exhibits 32 and 33, contain essentially the same information.  (R. at 1898; 1902.)  The fourth FBI document, Brown’s Exhibit

36, is an extensive report prepared by the FBI regarding her background, including an interview with

Lottie Mae Brown, Brown’s mother.  The report indicates that:

	1.	Brown’s father had severe mental problems, drank to excess, and physically  	abused family members including the children.

			2.	Brown had experienced a drug overdose which required hospitalization 	in 1980 and may have been using drugs regularly.

	3.	Brown's personality changed drastically after she met Coleman.

			4.	Brown moved in with Coleman and would not talk to her family, but would look to Coleman to answer for her.

			5.	Brown's mother felt that Coleman completely controlled Brown and that she would do whatever Coleman asked her to do; Brown’s mother also 		believed

that Coleman was beating Brown and using her as a prostitute.

	6.	Brown’s mother had seen Brown with her face “all beaten up” during the time 	Brown was living with Coleman.

(R. at 1931.)

	B

	From the very outset of the penalty phase, defense counsel made it clear that his principal

argument would be that Brown should not be sentenced to death because she had been acting “under

the substantial domination of Alton Coleman.”  (T.R. at 3344.)  In a powerful fourteen page opening

statement to the jury at the beginning of the penalty phase, defense counsel spent thirteen pages of

it emphasizing Coleman’s control over Brown.  (T.R. at 3385-3400.)  Specific testimony to this

effect was presented by defense counsel throughout the penalty phase.

	Counsel proceeded to make his argument primarily through expert testimony.  First, a Dr.

Batacan, a psychiatrist who had examined Coleman, testified as to Coleman's manipulative personal

ity.  Then a Dr. Periolet, another psychiatrist who had examined Coleman, testified that one charac teristic of Coleman's sociopathic personality was that he would assess who he could control. 

Counsel then called a Beverly Perkins, Coleman's ex-wife, who testified that Coleman used physical

violence and threats of harm to her family whenever she tried to leave their apartment to do some

thing by herself.    

	Next counsel called a Dr. Kelly, a psychiatrist, who testified as to the results of his examina

tion of Brown.  Dr. Kelly had examined Brown twice and also discussed the results of his examina

tion with a psychologist, Dr. Rogers, who had independently examined her.  In compiling the results

of his examination, Dr. Kelly also examined additional hospital records, school records and the report

of another psychologist, Dr. Suran, concerning Brown.  Dr. Kelly testified as to Brown’s difficult

upbringing, based on his conversation with members of her family, including her mother and sister. 

He discussed her poor school record, a serious auto accident in which she had been involved, and her

record of truancy from school.  He noted that her school records showed an IQ at the age of 12 of

59 and a current IQ of 74.

	In Dr. Kelly’s expert opinion, Brown suffered from the mental illness of dependent personal

ity disorder.  Among the causes of the dependent personality disorder identified by Dr. Kelly were

her limited intelligence and difficult family upbringing.  Dr. Kelly also gave his expert opinion that

Brown was under the domination and control of Coleman at the time of the crime and that she was

a good candidate for rehabilitation.  

	Defense counsel also called a Dr. Suran, a clinical psychologist, who had conducted a diagnostic psychological evaluation of Brown, including a social history.  Dr. Suran reported that

Brown scored 75 on the Wechsler IQ test and that she functioned as mildly retarded.  His examina

tion showed her to have “a very depraved background” and that she never evolved to the level of

emotional development consistent with her age.  More specifically, in his interview with her dealing

with her family and background, he learned that she had been the subject of “frequent and repeated

physical abuse, sexual abuse, and a very strong sense of rejection and abandonment.”  Dr. Suran

found Brown to be the victim of severe environmental deprivation.

	It was Dr. Suran’s expert opinion that Brown suffered from borderline retardation, depres

sion, and had a dependent personality or passive dependent personality.  Dr. Suran also made

reference to Brown’s childhood abuse, collected school and medical records, and noted her child

hood mental retardation diagnosis.

	Two statements from Dr. Suran’s testimony bear citation here:  

		[I]ndependent of her relationship with Alton Coleman, I really find no evi

dence in Debra's personality or functioning of tendencies to commit the kinds of

offenses for which she has been convicted, and it is my conclusion that it is only in

and through her relationship with Alton Coleman that she has had any involvement

in these crimes.

(T.R. at 3746-47).  Further: 

		I do not find in Debra Brown the kind of impulse type of hostile, aggressive,

resolved or unresolved, instincts and impulses that is capable of committing the kinds

of offenses for which she has been convicted.  What I do find is a pathological degree

of dependent behavior on her part that through association with another agent that

was capable and that did have such hostile impulses that she would act out those

impulses dependently serving the other agent, in this case, the agent being Alton

Coleman.

(T.R. at 3757.)

	The trial court gave reasonably extensive treatment to this evidence in its sentencing order:

	There is a large quantity of evidence from the reports and testimony of a clinical

psychologist who examined defendant Brown on April 18, 1986 and testified at trial

and the report of a psychiatrist who examined Deborah [sic] Brown on August 1 and

August 8, 1984, and testified at trial and other psychological reports that the Defen

dant was under the substantial domination of her co-defendant at the time these

offenses were committed.  The Court has already detailed the Defendant’s mental

state at the time of the commission of these offenses.  It is agreed by the experts that

the Defendant was a young woman with borderline intellectual functioning with a

dependent personality disorder.  It is further agreed that she had demonstrated an

inability to function independently and to assume responsibility for major areas of her

life.  It is evident from her interview with Dr. Suran that Alton Coleman provided her

with attention and support and that he is someone that this defendant became de

voted to.  Further evidence was presented of the dominant, manipulative personality

of Alton Coleman.  Truly he is such a person and appears to be totally without

conscience.  The affect of such a person on one with Deborah [sic] Brown’s inade

quacies is also obvious.  The central question to this Court is whether or not Deborah

[sic] Brown was so under the domination of Alton Coleman because of her own

inadequacies and personality disorders that she could not make a rational choice as

to her own participation in repeated violent criminal acts, accompanied by repeated

efforts to deceive intended victims and others and to evade prosecution.  Defendant

Brown was not and is not insane nor mentally ill.  She was not under the influence of

alcohol or drugs.  In the opinion of this Court she made a choice to follow Coleman

and to prove herself to him.  She stated to Dr. Suran “I know I have to suffer for

what I did, but I’ll give my life for him.  I’ll fight for my husband’s (Coleman) life. 

I’ll go down for him.  I’ll put my life on the roll for him. . . I loved him so much, I

told him that I would go down with him, and I would give up my life for him.”  The

Court would agree that defendant Brown reached her decision making processes in

this crime spree with limited intellectual tools.  But the Defendant made a rational

decision to become involved with Coleman no matter what the consequences, includ

ing these horrible crimes committed against innocent children and many others

including at least two other vicious murders.  The domination over this defendant by

Alton Coleman is not sufficient to excuse her criminal conduct.

(T.R. at 355-57.)

	It is true that at the post-conviction hearing, both trial counsel and the experts who testified

at trial indicated that they would have been able to make their case that Brown was under Coleman’s

domination and control more persuasively had they known what was in the four FBI documents. 

The post conviction court disagreed, finding that these materials did not add anything to the evidence

which was presented to the jury.  We find no basis to disagree with this conclusion.9  While the FBI reports contained information relevant to mitigating circumstances appropriate for consideration in

the penalty phase of Brown's trial, trial counsel in fact argued those mitigating circumstances

vigorously with the help of expert testimony and the trial court clearly took them into account in

pronouncing sentence.  

	C

	In a related argument, Brown contends that the FBI wrongfully denied her access to a

substantial quantity of documents concerning her case.10  She argues that this denial has prevented her from fully and adequately investigating, preparing and presenting her claim for post-conviction

relief.  She further asserts that as a result certain federal and state constitutional rights have been

violated.

	Brown has not presented us with any basis for concluding that her ability to assert entitlement

to post-conviction relief has been limited in any material way or that any of her constitutional rights

have been violated as a result.  Brown’s claim appears to be that there might be additional informa

tion in the FBI files of the character discussed in part I-A, supra, i.e., information showing that she was under the domination and control of Coleman.  But as we have already discussed, extensive

evidence in support of this mitigating circumstance was presented to the jury and the court during

the guilt and penalty phases of Brown’s trial.  Nothing in Brown’s argument gives us any basis for

concluding that any undisclosed information “could be reasonably taken to put the whole case in

such a different light as to undermine confidence” in the trial court's judgment, Kyles, 514 U.S. at 435.

	Brown’s principal argument here seems to be along the lines that there might have been

additional evidence in the FBI files supporting her claim of domination and control by Coleman.  But

she also suggests entitlement to the FBI files “to learn what, if any, additional exculpatory informa

tion is hidden in the FBI files and to pursue whatever leads might be uncovered.”  Br. of Appellant

at 121.  We have recently observed that the post-conviction relief process “is not a device for

investigating possible claims, but a means for vindicating actual claims” and that “[t]here is no

postconviction right to ‘fish’ through official files for belated grounds of attack on the judgment or

to confirm mere speculation or hope that a basis for collateral relief may exist.”  Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997), reh’g denied (quoting People v. Gonzalez, 800 P.2d 1159, 1206 (Cal. 1990)).  To the extent that Brown does not contend that there is any specific information in the

FBI files that supports her claims to post-conviction relief, no rule of constitutional law or state procedure mandates unfettered access to the FBI files in the hopes of uncovering such.  See Roche, 690 N.E.2d at 1133 (citing State v. Marshall, 690 A.2d 1 (N.J. 1997)).

	II

	Brown contends that she was denied the effective assistance of counsel to which she was

entitled at the penalty phase of her trial because her lawyers failed fully to investigate, develop and

present evidence at the penalty phase of her trial.    We analyze such claims according to the two-

part test announced in Strickland v. Washington, 466 U.S. 668 (1984).  See e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind. 1997), reh’g denied, cert. denied, 118 S.Ct. 2064 (1998); Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994).  First, we require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or wrongs of counsel were outside the range

of professionally competent assistance.  Id.  This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms.  Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind. 1991)).  “Isolated poor strategy, bad tactics, a mistake, carelessness or

inexperience do not necessarily amount to ineffective assistance of counsel unless, taken as a whole,

the defense was inadequate.”  Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996) (quoting Terry v. State, 465 N.E.2d 1085, 1089 (Ind. 1984).  Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance.  This showing is made by demonstrating

that counsel's performance was so prejudicial that it deprived defendant or petitioner of a fair trial. 

Lowery, 640 N.E.2d at 1041.  See Games v. State, 690 N.E.2d 211, 213 (Ind. 1997).  We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable.  Lowery, 640 N.E.2d at 1041 (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind. 1991)).

	A

	Brown's claim of failure fully to investigate, develop and present penalty phase evidence

focuses on four areas: (1) her family and upbringing; (2) her intellectual and educational deficits; (3)

her absence of any criminal record or history of violence, and her generally positive character, prior

to meeting Alton Coleman; and (4) that she was suffering from Battered Women’s Syndrome.

	At the post-conviction hearing, Brown presented extensive evidence in each of these areas.11  Nevertheless, the post-conviction court found that she had not been denied the effective assistance

of counsel in this regard because prejudice had not been shown.  The post-conviction court con

cluded that given the seriousness of the crimes for which Brown had been convicted, the jury was

unlikely to reach a different result even with this evidence.  

	Without reaching the issue of prejudice, we agree with the post-conviction court’s conclusion

because we do not find counsel’s performance to have been deficient.  As discussed in part I, supra, counsel’s strategy at the penalty phase was to argue that Brown should not be sentenced to death

because she had been acting “under the substantial domination of Alton Coleman” when she commit ted the crimes for which she had been convicted.  In part I-B, supra, we detailed the testimony elicited by defense counsel at the penalty phase.  That recitation demonstrates that counsel did

present to the jury at the penalty phase of Brown’s trial evidence of her difficult family upbringing,

her limited educational and intellectual abilities, her positive record of behavior prior to meeting

Alton Coleman and, if not that she was explicitly the victim of Battered Women’s Syndrome, that she

functionally suffered from it at Coleman’s hands.12   It appears to us that Brown’s quarrel with her trial counsel is over the amount of evidence presented in these three areas at trial, not whether any

investigation, development or presentation took place.13 

	On this record, we cannot say that counsel’s performance was deficient in concentrating his

penalty phase argument on Brown's relationship with Coleman.  To be more specific, we cannot say

that it was deficient performance for counsel to marshal his witnesses to try to present as strong a

case as possible that Brown committed the crimes for which she had been convicted under the

domination and control of Coleman and that her submission to his domination and control was

accounted for by her difficult upbringing, her limited IQ and her mental illness of dependent person

ality disorder.  Brown has not demonstrated deficient performance by her trial counsel in this regard.

	B

	In a related claim, Brown contends that the post-conviction court improperly excluded

evidence relevant to her claim that trial counsel was ineffective for failing fully to investigate, develop

and present mitigating evidence.  She argues that the exclusion of this evidence denied her a full and

fair post-conviction hearing.  According to Brown, the excluded evidence consisted of the following

four items:  

			1.	The testimony of a Mr. See, a Cleveland-based executive of an offender re-		 entry program with experience as a witness concerning mitigating circum

stances, which was “offered to show the social, racial and cultural environ

ment in which Brown was raised and to demonstrate how the individuals 	and

social service institutions charged with [Brown’s] care defaulted on 	their

responsibilities.”  Br. of Appellant at 93.  While See’s testimony is of 	record,

the post-conviction court ultimately excluded it.  (R. at 1637-38.)

			2.	Certain unspecified affidavits relevant to the claim of failure to investigate 		 and discover mitigating evidence.  Br. of Appellant at 98.  These affidavits 		

appear to be of the same nature as those discussed in part III-A of our 		recent

opinion in Roche, 690 N.E.2d at 1131.  They are included in the record but were “not admitted.”  (R. at 98.)

			3.	The post-conviction testimony of Dr. Suran to “the effect of the recently 		 discovered mitigating evidence on the conclusions he described at trial.”  Br.

of Appellant at 99.  The record contains a filing styled “Proffer of Testimony

of Bernard Suran, Ph.D.,” summarizing the testimony he would have given. 

(R. at 506-08.)

			4.	A “social history report” prepared by a Mr. Coconis, a social worker with 			 experience as an investigator of mitigating circumstances, which was to 		have

been used as the basis of Dr. Suran’s testimony.  Br. of Appellant at 		101. 

Although the State’s objection to the introduction of this report was 		sus

tained, a copy is included in the record.  (R. at 1908-17.)

			5.	The post-conviction testimony of Brown’s trial counsel, Mr. Toomey, as to whether he thought and felt he gave Brown effective representation at trial.  Br. of Appellant at 102.  The post-conviction court sustained the State’s 		

objection on grounds that the question of counsel’s effectiveness was for 		the

court to decide.  (R. at 1430.)

	We find no error with respect to item (2), the exclusion of the affidavits.  See Roche, 690 N.E.2d at 1131 (affidavits prepared for similar purpose excluded).  We also find no error with

respect to item (5), the prohibition on counsel’s testifying as to his own ineffectiveness.  Compare Ind.Evidence Rule 704(a) (testimony is not objectionable merely because it embraces an ultimate

issue to be decided by the trier of fact) and Evid.R. 704(b) (witnesses may not testify to opinions

concerning legal conclusions).

	Items (1), (3) and (4) all relate to Brown’s family and upbringing, her intellectual and

emotional development, her lack of criminal history before meeting Alton Coleman, and her relation

ship with Coleman.  The post-conviction court generally excluded this information on grounds that,

even if it had been presented to the jury during the penalty phase of Brown’s trial, it “would not have

made a difference to the jury’s recommendation or the trial court’s sentence.”14  (R. at 778.)  As such, the post-conviction court concluded, the prejudice prong of the test for ineffective assistance

of counsel had not been satisfied.

	We are not as willing as the post-conviction court to imply that there are circumstances in which no quantum of evidence would be sufficient to change a jury’s recommendation or a trial

court’s sentence.  But, as noted at the outset of part II-A, supra,  we find it unnecessary to analyze this issue in terms of prejudice.  Our purpose here is not to replay Brown’s trial; it is to determine

whether she was denied the effective assistance of counsel to which she was entitled. We concluded supra that counsel did not render deficient performance with respect to the presentation of mitigating circumstances.  The fact, without more, that the additional evidence excluded by the post-conviction

court could have been presented at trial does not affect this conclusion.  

	III

	Brown contends that she was denied the effective assistance of counsel to which she was

entitled when counsel failed to present evidence of Brown’s borderline mental retardation in support

of his contention that Brown’s confession had been involuntary.  Noting that this Court gave

extensive consideration to the voluntariness of Brown’s confession in her direct appeal, Brown, 577 N.E.2d at 229, the State argues that the issue is not available for relitigation here.  See Ind.Post- Conviction Rule 1(8); Canaan, 683 N.E.2d at 235; Lamb v. State, 511 N.E.2d 444, 447 (Ind. 1987); Ingram v. State, 508 N.E.2d 805, 807 (Ind. 1987). 

	We agree with the State’s argument that the doctrine of res judicata bars consideration of Brown’s argument here.  Brown’s argument is essentially this: (1) her borderline retardation and

mental illness (severe passive-dependent personality disorder) impacted her ability to make a

knowing, voluntary and intelligent waiver of her constitutional rights in giving her confession; (2) her lawyer was unaware of case law that holds that evidence of mental retardation is relevant and

material to determining whether or not a defendant knowingly and voluntarily waived his or her

rights; and (3) counsel’s failure to know the law effectively precluded the suppression of Brown’s

confession.  As the phrasing of her argument suggests, a defendant’s limited intelligence or mental

health alone does not render a confession involuntary.  Indeed, in Colorado v. Connelly, 479 U.S. 157 (1986), the United States Supreme Court said that the purpose of the Fifth Amendment’s

testimonial privilege against self-incrimination and the requirements of Miranda are to protect against police misconduct.  “Although a person’s mental condition is relevant to the issue of susceptibility

to police coercion, where the person voluntarily makes a confession without police coercion the

confession may be considered in spite of the mental condition.”  Pettiford v. State, 619 N.E.2d 925, 928 (Ind. 1993).  See Connelly, 479 U.S. at  167.  Thus the issue here really turns on whether the police conduct was coercive within the meaning of Connelly.  We decided this issue on direct appeal.  Brown, 577 N.E.2d at 230 (“no inducements or threats were made by law enforcement officials to gain the confession”).  It is not available for relitigation here.

	IV

	Brown contends that she was denied the effective assistance of appellate counsel to which

she was entitled in several respects.  As with claims of ineffective assistance of trial counsel, we

analyze claims of ineffective assistance of appellate counsel according to the two-part test announced

in Strickland, 466 U.S. at 668.  See, e.g., Lowery, 640 N.E.2d at 1048 (“standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel”).  A petitioner claiming ineffective assistance of appellate counsel must show both deficient performance

and resulting prejudice.  Roche, 690 N.E.2d at 1120.  The failure to establish either prong will cause the claim to fail.  Id.

	Brown first contends that her appellate counsel (who was the same as trial counsel) was

ineffective for failing to raise on direct appeal the issues discussed in parts IV-A and IV-B, infra.  These were issues, Brown points out, that counsel raised in his motion to correct errors following

trial but did not raise on direct appeal.15  The post-conviction court appears to have concluded that these contentions were tantamount to an argument “that appellate counsel did not pursue a claim in

the direct appeal that the trial court judge erred in imposing the death sentence.”  (R. at 765.)  But,

the post-conviction court continued, “Because the Supreme Court fulfilled its independent duty to

review the propriety of the death sentence and upheld that sentence, that issue is res judicata.”  Id.  We find this conclusion too attenuated to affirm without further analysis.  

	The State points out that in the direct appeal, counsel raised five substantial errors for our

review and rightly cites our opinion in Lowery to the effect that counsel is not required to raise every possible claim in a direct appeal.  As we said in Lowery, counsel should exercise professional judgment and expertise in choosing the issues raised on appeal.  Lowery, 640 N.E.2d at 1049.  This comports with the United States Supreme Court pronouncement to the same effect — that effective

advocacy does not mandate that the appellate attorney raise each and every non-frivolous issue.  Jones v. Barnes, 463 U.S. 745 (1983).  See Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) (“the reviewing court should be particularly sensitive to the need for separating the wheat from the chaff

in appellate advocacy, and should not find deficient performance when counsel’s choice of some

issues over others was reasonable in light of the facts of the case and the precedent available to

counsel when that choice was made”), reh’g denied.  See also Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989)  (“One of the principal functions of appellate counsel is winnowing the potential

claims so that the court may focus on those with the best prospects.”).  Nevertheless we elect here

to address the claims on the merits.

	A

	One of the mitigating circumstances specified in our death penalty statute is the absence of

prior criminal history.  During the penalty phase, defense counsel questioned Dr. Suran as to whether

Brown had any prior criminal history prior to her association with Coleman.  Dr. Suran testified that

Brown had no criminal history prior to that time.  The crimes Brown committed with Coleman began

in June, 1984, with the crimes that are the subject of this proceeding and then continued with

additional crimes in Ohio in July of that year.  In rebuttal, the State introduced evidence over the

objection of Brown's counsel that Brown had been convicted of a kidnaping which occurred after

June, 1984.  Brown now says, “Defense counsel attempted to establish that Brown had no previous

juvenile or adult criminal history prior to her crime spree with Coleman, which began in June, 1984. 

Admission of a kidnaping conviction which occurred after June, 1984 did not logically tend to rebut

the defense evidence.  Moreover, admission of [the evidence of the kidnaping conviction] impaired the jury's ability to find the existence of, or give weight to, the [absence of prior criminal history]

statutory mitigator.”  Br. of Appellant at 81.  

	We have never been called upon to address whether evidence of crimes committed after the

offense for which the defendant is on trial is admissible in rebuttal of an assertion of absence of prior

criminal history on the defendant's behalf.  While such evidence is certainly not relevant to determin

ing whether the defendant had a criminal history prior to committing the offense for which he or she

is being tried, we nevertheless believe that such evidence is relevant to determining the weight to be

given to the no prior criminal history mitigator.  See generally Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979) (evidence of subsequent crimes admissible in penalty phase only if it is relevant to

an aggravating circumstance or a mitigating circumstance raised by the defendant).  We further note

that two of the aggravating circumstances in this case were murders committed by Coleman and

Brown (and reduced to conviction) after the date of the offenses for which she was being tried and

Brown has never raised any question as to the propriety of using these later-occurring offenses as

aggravating circumstances.  If Brown has no objection to using later-occurring offenses as aggravat

ing circumstances to justify the imposition of the death sentence, the argument against the use of a

later-occurring offense as rebuttal to a claim of no prior criminal history seems far less compelling. 

We find the trial court well within its discretion to admit the evidence of the later occurring offense

in rebuttal and consequently find no ineffective assistance of appellate counsel for failing to raise the

issue on direct appeal. 

	B

	At the outset of proceedings in the trial court, Brown filed a motion to dismiss the death

penalty count on grounds that the Indiana death penalty statute was unconstitutional.  This claim was

raised again in the motion to correct errors but not on direct appeal.  Brown now argues that

appellate counsel was ineffective for failing to claim that the trial court erred by not denying the

motion to dismiss.  As best as we can understand Brown’s argument in this appeal, she contends that

the Indiana death penalty statute is unconstitutional for failing to give adequate guidance to the

sentencer in two respects: (1) the statute does not provide any standard of proof for finding the

existence of mitigating circumstances; and (2) the statute does not provide any guidance as to how

the sentencer is to assess the relative weight of any aggravating and mitigating circumstances found

to exist. 

	We recently addressed the first of these claims in Matheney v. State, 688 N.E.2d 883, 902 (Ind. 1997), reh’g denied.  Here, Brown argues “This capital sentencing [sic] permits the sentencer to arbitrarily apply any standard of proof to the existence of mitigators it chooses.  While the

sentencer might apply some low standard of proof to mitigating circumstances, it is equally likely

that the sentencer might apply a standard of proof which is higher than contemplated, possibly higher

than proof beyond a reasonable doubt.  Furthermore, the sentencer is free to apply a completely

subjective standard of proof to mitigating circumstances which effectively bars the consideration of

both statutory and non-statutory mitigating circumstances.”  But in Matheney we said, “Without something specific in the given jury instructions which would clearly lead a jury to such a misunder standing, a bald assertion as to what a jury is likely to presume will not suffice.”  Matheney, 688 N.E.2d at 902.  Brown’s argument is even weaker than Matheney’s because the record reveals that

the trial court instructed Brown’s jury, “A circumstance need not be proved, beyond a reasonable

doubt, to be considered a mitigating circumstance by you.”  (T.R. at 290.).  

	As to the second contention, we resolved the question of whether our death penalty statute

provides adequate guidance to the sentencer on the assessment of the relative weight to aggravating

and mitigating circumstances adverse to Brown’s position in Miller v. State, 623 N.E.2d 403, 408-09 (Ind. 1993) (citing Fleenor v. State, 514 N.E.2d 80 (Ind. 1987))         .

	C

	Brown contends that appellate counsel was ineffective for failing to claim on direct appeal

that the Indiana death penalty statute was unconstitutional as applied to Brown in this case because

it failed to narrow the class of persons eligible for capital punishment.  Specifically, she argues that

the first aggravating circumstance alleged by the State in support of its death penalty request, that

Brown intentionally killed while committing child molesting, duplicated the elements of the underly

ing murder and child molesting charges.  She begins by observing that the United States Supreme

Court held in Lowenfield v. Phelps, 484 U.S. 231 (1988), to the effect that a legislature may achieve the constitutionally required narrowing either by defining certain murders as capital offenses or by

requiring findings of aggravating circumstances at the penalty phase.  Noting that Indiana has chosen

the later approach, she contends that in her situation no narrowing occurred because the aggravating circumstance charged was no different than the underlying offenses with which she was charged.  As

the State properly points out, this court has previously held that such a contention misconstrues the

narrowing function of our death penalty statute: 

Appellant . . . claims that the overlap between the aggravating circumstance found at

the sentencing phase and the convictions at the guilt phase violates constitutional

principles by eliminating the critical narrowing function of the sentencing process,

allowing the State to enter the penalty phase with the aggravating circumstance

already proven beyond a reasonable doubt.  Our death penalty statute requires the

sentencer to find at least one aggravating circumstance beyond a reasonable doubt,

to consider and evaluate any mitigating factor it may find to exist, and to weigh the

aggravators and mitigators, finding that the mitigating circumstances are outweighed

by the aggravating circumstances, before it may impose death.  This scheme ade

quately structures and channels the discretion of the jury and the court and satisfies

the ruling in Lowenfield v. Phelps[.]

Baird v. State, 604 N.E.2d 1170, 1183 (Ind. 1992).

	D

	Brown contends that appellate counsel was ineffective for failing to raise three claims of trial

court error in instructing the jury.16  Brown’s assertions of ineffective assistance of counsel are conclusory in nature and not supported by any argument or authority as to deficient performance.  We find such claims waived for failure to comply with Ind.Appellate Rule 8.3(A)(7) (requiring an

appellant’s brief to set forth “the contentions of the appellant with respect to the issues presented,

reasons in support of the contentions along with citations to authorities, statutes, and parts of the

record relied upon”).

	V

	Brown contends that the operation of the Lake County public defender system created a

conflict of interest for her trial counsel, denying her the effective assistance of counsel.  The conflict

alleged appears to be that counsel’s loyalty to Brown was compromised by his loyalty to the trial

court judge who, under the Lake County scheme, appointed him.  Brown also argues that Lake

County public defenders were provided insufficient resources by the judges.

	Brown’s claim is similar to — though less developed than — several claims recently rejected

by this court.  See Johnson v. State, 693 N.E.2d 941, 952 (Ind. 1998) (alleging systemic deficiencies in the Madison County public defender system), reh’g denied; Roche, 690 N.E.2d at 1135 (Lake County); Games v. State, 684 N.E.2d 466, 478-80 (Ind. 1997) (Marion County), reh’g granted on other grounds, 690 N.E.2d 211.  We reach the same conclusion here.  First, absent authority or cogent argument from Brown, we decline to find that any conflict of interest that might exist as a

result of a trial judge appointing the public defender in his or her court rises to the level of constitu tional violation.17  Second, irrespective of whether there were problems with the Lake County public defender system, Brown must show that her trial counsel provided deficient performance and that it

was prejudicial.  Johnson, 693 N.E.2d at 953.  Brown has shown neither deficient performance nor prejudice.

	Conclusion

	We affirm the denial of post-conviction relief with respect to Debra Denise Brown’s convic

tions for Murder and Attempted Murder and sentence of death.

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.