Coleman v. State

• Decision Date: 24 August 1990
• Docket Number: No. 45S00-8610-CR-937,45S00-8610-CR-937
• Citation: 558 N.E.2d 1059
• Parties: Alton COLEMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1059

558 N.E.2d 1059

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.

SHEPARD, Chief Justice.

Appellant Alton Coleman was found guilty by a jury of murder, a felony, Ind.Code Sec. 35-42-1-1(1) (Burns 1985 Repl.), attempted murder, a class A felony, Ind.Code Secs. 35-41-5-1, 35-42-1-1 (Burns 1985 Repl.), and child molesting, a class A felony, Ind.Code Sec. 35-42-4-3(a) (Burns 1985 Repl.). The jury also recommended the death penalty. ¹ 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 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, mouths 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. A.H. 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 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 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).

Mary Lee Hilland, 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. Hilland 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 Hilland'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. Second, 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 Mary Lee Hilland's testimony was proper under the eighth amendment. Hilland 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.

Hilland'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, Hilland'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 Hilland's testimony. Rather, Judge Maroc focused on the overwhelming evidence demonstrating commission of the crime and Coleman's moral blameworthiness for it. Admitting Hilland's testimony under these circumstances 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, Secs. 12, 13, and 14 of the Indiana Constitution and the fifth, sixth and fourteenth amendments to the U.S. Constitution. ² 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...