Ben-Yisrayl v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Steve Carter

Public Defender of Indiana Attorney General of Indiana

Steven H. Schutte Arthur Thaddeus Perry

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana

Emily Mills Hawk

Deputy Public Defender

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

OBADYAH BEN-YISRAYL, F/K/A )

CHRISTOPHER PETERSON, )

)

Appellant (Petitioner Below), )

)

v. ) No. 64S00-9808-PD-429

)

STATE OF INDIANA, )

)

Appellee (Respondent Below). )

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable Thomas W. Webber, Judge

Cause No. 64D02-9102-CF-22

August 28, 2001

SHEPARD, Chief Justice.

Obadyah Ben-Yisrayl sits on Death Row after committing four murders.

After his appeal in the two killings involved in this case, he sought post-

conviction relief, unsuccessfully. We have spent considerable time

examining his most energetic contention--that the transcript of his trial

is in such deplorable shape that the case should be tried anew. We affirm

the post-conviction court’s denial of relief.

Formerly known as Christopher D. Peterson, Ben-Yisrayl was sentenced to

death after being convicted of two counts of murder and two counts of

felony murder for killing Harchand Dhaliwal and Marie Meitzler in Portage,

Indiana. We affirmed his convictions and sentence on direct appeal. Ben-

Yisrayl v. State, 690 N.E.2d 1141 (Ind. 1997), cert. denied, 525 U.S. 1108

(1999). In this appeal from the denial of his petition for post-conviction

relief, he raises several issues, which we restate as:

I. Whether the post-conviction court properly excluded polygraph

evidence;

II. Whether his appellate lawyer was ineffective;

III. Whether his trial counsel rendered ineffective assistance;

IV. Whether the post-conviction court properly admitted evidence of

George and Ilija Balovski’s murders and the shotgun found in Ben-

Yisrayl’s closet;

V. Whether certain procedural rulings of the post-conviction court

were erroneous; and

VI. Whether the trial transcript was so inadequate as to deny Ben-

Yisrayl due process or meaningful appellate and collateral

review.

Facts and Procedural History

On the evening of December 13, 1990, Harchand Dhaliwal was killed by

a shotgun wound to the head while working as a gas station attendant in

Portage, Indiana. About $327 was missing from the station. Two days

later, Marie Meitzler was also killed by a shotgun wound to the neck while

working as a motel clerk, not far from the gas station. The motel’s cash

register was missing about $467.

On December 18, 1990, Ilija (Eli) and George Balovski were each

killed by gunshot wounds to the head while working at their tailor shop in

Gary, Indiana. Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind. 2000).

Portage police officers recovered from Ben-Yisrayl’s apartment a sawed-

off shotgun that was later determined to have fired a shell casing involved

in the Balovski shootings. After he was arrested, Ben-Yisrayl gave a

formal statement to the police admitting each of these murders.

Post-Conviction Standard of Review

As we have often explained, post-conviction proceedings are not

intended and will not operate as a “super-appeal” for the convicted. See

Langley v. State, 256 Ind. 199, 203, 210, 267 N.E.2d 538, 540, 544 (1971);

Weatherford v. State, 619 N.E.2d 915, 916 (Ind. 1993). Rather, these

proceedings provide a narrower remedy for subsequent collateral challenges

to convictions. Weatherford, 619 N.E.2d at 916-17. A petitioner has the

burden to establish grounds for relief by a preponderance of the evidence.

Ind. Post-Conviction Rule 1(5).

On appeal of the denial of post-conviction relief, a petitioner

“stands in the position of one appealing from a negative judgment.”

Fleenor v. State, 622 N.E.2d 140, 142 (Ind. 1993), cert. denied, 513 U.S.

999 (1994). Consequently, the appellate court considers only the evidence

and reasonable inferences from such evidence that support the prior

judgment. Weatherford, 619 N.E.2d at 917. “To prevail . . . the

petitioner must show that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite to that reached by the trial court.”

Id. (citing Williams v. State, 508 N.E.2d 1264 (Ind. 1987)).

I. The Belated Polygraph Exam

Ben-Yisrayl says the post-conviction court infringed upon his

constitutional right to present a defense by refusing to consider evidence

that he passed a polygraph examination in 1999, almost nine years after the

crimes occurred.[1] (Appellant’s Br. at 9, 21; P-C.R. at 564-66, 607-09.)

We rejected an argument similar to Ben-Yisrayl’s in Wallace v. State,

553 N.E.2d 456 (Ind. 1990), cert. denied, 500 U.S. 948 (1991). The debate

over admissibility of polygraph evidence has continued in intervening

years. The U.S. Supreme Court recently revisited the reliability of

polygraph testing in a case challenging the constitutionality of a military

rule making polygraph evidence inadmissible per se in court-martial

proceedings. United States v. Scheffer, 523 U.S. 303, 305 (1998). The

Court concluded: “[T]here is simply no consensus that polygraph evidence

is reliable. To this day, the scientific community remains extremely

polarized about the reliability of polygraph techniques.” Id. at 309

(citations omitted). A per se exclusionary rule therefore did not infringe

upon the accused’s federal constitutional right to present a defense. Id.

at 317.

In focusing on the argument that polygraph evidence should be admitted

because it is reliable, Ben-Yisrayl overlooks another formidable

evidentiary hurdle. He offers his polygraph results to prove that he spoke

truly when telling the examiner, “No,” he had not killed “any of these

people.” (P-C.R. at 580.) But out-of-court statements offered to prove

the truth of the assertion are inadmissible hearsay. Indiana Rule of

Evidence 801(c). Even well-respected proponents of polygraph evidence have

conceded that the type of evidence Ben-Yisrayl offers “arguably violates

the spirit of the hearsay rule” because “the foremost rationale for the

rule is safeguarding the right to cross-examine adverse witnesses.” Edward

J. Imwinkelried & James R. McCall, Issues Once Moot: The Other Evidentiary

Objections to the Admission of Exculpatory Polygraph Examinations, 32 Wake

Forest L. Rev. 1045, 1064 (1997).

Ben-Yisrayl cannot overcome the prohibition against hearsay evidence

by offering the polygraph to bolster his credibility rather than for the

truth of the matter asserted, because he has avoided impeachment throughout

this case by declining to testify. The post-conviction court did not err

in refusing to admit the polygraph operator’s view about the veracity of

such out-of-court statements.

II. Was Ben-Yisrayl’s Appellate Lawyer Ineffective?

Ben-Yisrayl says his appellate lawyer should have argued that his

death sentence violated the U.S. Constitution because “literally no

evidence supports it.” (Appellant’s Br. at 23.) This contention refers to

the fact that during the penalty phase of Ben-Yisrayl’s trial, the State

presented no new evidence but specifically asked the jury to consider all

the evidence presented to them during the guilt phase, as provided in Ind.

Code § 35-50-2-9(d).[2]

In his direct appeal, Ben-Yisrayl argued that the State had not

offered any evidence of a statutory aggravating circumstance during the

penalty phase, and thus had failed to prove the existence of an aggravator

beyond a reasonable doubt. See Ind. Code Ann. § 35-50-2-9(a)(West 1993),[3]

Ben-Yisrayl, 690 N.E.2d at 1151. We held that the Indiana Code did not

require that a prosecutor formally move to incorporate the guilt phase

evidence at the penalty phase in order to satisfy the State’s burden of

proof during the penalty phase and that the evidence was thus before the

jury for consideration in recommending for or against death. Ben-Yisrayl,

690 N.E.2d at 1152.

Ben-Yisrayl now raises the issue of the State’s reliance on guilt

phase evidence during the sentencing phase as a federal constitutional

claim.[4] He asserts that his appellate counsel was ineffective for

failing to argue on direct appeal that the penalty phase of Ben-Yisrayl’s

trial violated several of his federal constitutional rights.[5]

(Appellant’s Br. at 25, citing T.R. at 1477).

Each of these contentions flows from his assertion that the State

“made no request that the guilt-trial evidence be incorporated into the

penalty-trial [],” (Appellant’s Br. at 25), and that his lawyer was

deficient for not arguing the point.

We held during Ben-Yisrayl’s direct appeal that in the penalty phase

of trial the jury may consider all the evidence introduced at the trial

stage of the proceedings[6] whether the State requested incorporation of

the guilt phase evidence into the penalty phase or not.[7] That being the

state of Indiana law, his lawyer was not deficient by taking a pass on

federal arguments that rest on our law being otherwise.

III. Trial Counsel Effectiveness

A. On Jury Instructions. Ben-Yisrayl claims that his trial counsel

was ineffective for failing to argue that the word “arises” in a reasonable

doubt instruction impermissibly shifted the burden of proof at the guilt

phase of his trial.[8] (Appellant’s Br. at 28-30). He also claims

ineffective assistance for failure to challenge a presumption-of-

truthfulness instruction.[9] Id. at 30-32. He concedes that we rejected

these same arguments in his post-conviction challenge to his convictions

and death sentences for killing the Balovski brothers. Ben-Yisrayl v.

State, 729 N.E.2d at 111-12; (Appellant’s Br. at 27 n.3). Our conclusion

is the same here: counsel did not fall below an objectively reasonable

performance for failing to challenge these instructions. See Ben-Yisrayl,

729 N.E.2d at 111-12.

B. Exclusion of Jurors. Ben-Yisrayl claims that the post-conviction

court violated his federal and state constitutional rights when it refused

to admit affidavits by two prospective jurors who were dismissed because

they said they could not vote to impose the death penalty under any

circumstances. (Appellant’s Br. at 47-54; T.R. at 1374, 1394-95.) The

affidavits stated that these individuals opposed the death penalty as a

matter of conscience. (P-C.R. at 1713, 1716.)

A venireman “who express[es] conscientious objections to capital

punishment” may be excluded for cause if his views would “prevent or

substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412,

416, 424 (1985)(citation omitted). See also Fleenor v. State, 514 N.E.2d

80 (Ind. 1987), cert. denied, 488 U.S. 872 (1988) (exclusion of jurors who

cannot conscientiously consider the death penalty does not deny defendant a

fair trial).

Ben-Yisrayl argues that such exclusion is a form of religious

discrimination, and he invokes case law dealing with racially

discriminatory juror strikes. (Appellant’s Br. at 48-50.) We have held,

however, that precedent barring the racially discriminatory use of

peremptory challenges does not preclude the exclusion of prospective jurors

who would not recommend the death penalty under any circumstances. Lambert

v. State, 643 N.E.2d 349, 352 (Ind. 1994).

Ben-Yisrayl also claims that Ind. Code Ann. § 35-37-1-5(a)(3)(West

1991)[10] violates the equal privileges clause of the Indiana

Constitution.[11] (Appellant’s Br. at 51.) To pass constitutional muster,

differential statutory treatment must be reasonably related to inherent

characteristics that distinguish the unequally treated class. Collins v.

Day, 644 N.E.2d 72, 80 (Ind. 1994). Here, it is plainly reasonable to

exclude prospective jurors in capital cases who are so inherently opposed

to the death penalty that they could not recommend a death sentence

regardless of the facts or the law. A second prong of the constitutional

requirement is that the differential treatment must apply equally to all

those similarly situated. Id. This statute treats all jurors who express

such convictions, for whatever reason, the same.

A lawyer who did not raise these various challenges to the prevailing

rule of a “death-qualified jury” would be well within the standard of

performance required by the Sixth Amendment. The post-conviction court

appropriately rejected Ben-Yisrayl’s contentions about the effectiveness of

his trial counsel.

IV. Admissibility of Evidence at Trial

A. The Balovski Murders. Ben-Yisrayl argues that the trial court

improperly admitted evidence that Ben-Yisrayl murdered George and Ilija

Balovski. (Appellant’s Br. at 33.) As Ben-Yisrayl concedes, this issue

was raised in his direct appeal and resolved against him.[12] The decision

on that issue is res judicata. See Sweeney v. State, 704 N.E.2d 86 (Ind.

1998), cert. denied, 527 U.S. 1035 (1999).

B. The Shotgun. Ben-Yisrayl next argues that the shotgun found in his

mother’s apartment was illegally seized and therefore improperly admitted

into evidence at trial because there was no probable cause to believe that

it was contraband. (Appellant’s Br. at 44-46.) He bases this claim on an

assertion that the shotgun, which was twenty-six and a half inches, with a

sixteen or sixteen and a half inch barrel, was not “sawed-off.”

(Appellant’s Br. at 46); See Ben-Yisrayl, 729 N.E.2d at 110.

We have visited this shotgun issue before. In Ben-Yisrayl v. State,

729 N.E.2d at 109-10, Ben-Yisrayl claimed, as he does here, that the

shotgun was not a “sawed-off” shotgun,[13] as defined by Ind. Code § 35-47-

1-10.[14] We rejected this argument while affirming that the statute

defining a “sawed-off” shotgun should be interpreted disjunctively. Id. at

110. These two claims are barred.

V. Post-Conviction Procedural Rulings

Ben-Yisrayl asserts that the post-conviction court denied him the

right to full and fair litigation at his post-conviction hearing when the

court “refused to assist Ben-Yisrayl in securing additional relevant

information possessed by the government.” (Appellant’s Br. at 54.) Ben-

Yisrayl claims that access to information regarding the relationship

between Ivory Maxwell, a State’s witness, and Mark Becker, a Special Agent

with the Federal Bureau of Investigation, was “crucial to a reliable

outcome in this case.” We conclude it was not.

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the U.S. Supreme Court

held, “[T]he 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.” We have previously recognized that this holding

applies to evidence impeaching the credibility of a State’s witness. See

Williams v. State, 714 N.E.2d 644 (Ind. 1999), cert. denied, 528 U.S. 1170

(2000)(citing United States v. Bagley, 473 U.S. 667 (1985); Giglio v.

United States, 405 U.S. 150 (1972)). “The 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. A

‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.” Bagley, 473 U.S. at 682.

Ben-Yisrayl sought the additional evidence concerning the relationship

between Maxwell and Becker to show that Maxwell was a paid confidential

informant in Ben-Yisrayl’s case and to discredit Maxwell’s testimony. (See

Appellant’s Br. at 56). After examining the content of Maxwell’s testimony

and the effectiveness of defense counsel’s cross-examinations, the post-

conviction court found that the evidence that Ben-Yisrayl sought was not

material.[15] The court said,

It is clear that counsel conducted a very thorough cross-examination

of Maxwell, got him to admit some inconsistencies between his

testimony and his previous statements, and even got Maxwell to suggest

the Petitioner’s alleged statement about the shotgun might not be an

admission that Petitioner had done some damage with the shot gun . . .

It is hard to see how information as to Maxwell’s alleged cooperation

with law enforcement would have added much to the effect of the cross-

examination . . . . There is simply no reasonable probability that the

allegedly impeaching information would have led to a different result.

(P-C.R. at 1077-78.)

Ben-Yisrayl has failed to show that the evidence leads unerringly and

unmistakably to an opposite conclusion. Consequently, we will not disturb

the post-conviction court’s ruling.

Ben-Yisrayl next contends that the post-conviction court erred when it

denied his request for transcripts from the jury selection in his earlier

trial on these charges, which ended in a mistrial. (Appellant’s Br. at

56.) He asserts this information is necessary and relevant “to discover

whether the misconduct in jury selection presaged the alleged misconduct in

closing argument.” (Appellant’s Br. at 57.) We disagree.

The mistrial occurred with the first attempt to impanel a jury for Ben-

Yisrayl’s trial based on an improper comment by the prosecutor. (P-C.R. at

1214-16.) Ben-Yisrayl moved for a second mistrial during closing argument

claiming that the prosecutor committed reversible error when he challenged

defense counsel to explain why a person would voluntarily confess to a

crime that he did not commit. Ben-Yisrayl, 690 N.E.2d at 1148-49.

The trial court denied this motion and on direct appeal we determined

that the prosecutor’s statement could not have reasonably been interpreted

by the jury as a suggestion to infer guilt from the defendant’s silence.

Id. at 1149. We determined that the trial court did not abuse its

discretion by refusing to grant a mistrial because doing so did not subject

Ben-Yisrayl to grave peril. Id.

In his post-conviction proceeding, Ben-Yisrayl sought to establish a

pattern of prosecutorial misconduct by linking the prosecutor’s improper

comments from the mistrial with those made at closing argument. (P-C.R. at

1214.) The post-conviction court observed that the statements from the

mistrial were made to an entirely different jury and were dissimilar to

those made at closing argument. (P-C.R. at 1213.) The court characterized

Ben-Yisrayl’s request for the discovery of the transcripts from the jury

selection of the mistrial as a “fishing expedition.” (P-C.R. at 1218.)

We agree. Any error that occurred in the first proceeding was remedied

when the court declared a mistrial.

VI. An Imperfect But Sufficient Record

Ben-Yisrayl argues vigorously that errors and omissions in the record

entitle him to a new trial. (Appellant’s Br. at 58.) After careful

scrutiny of the record, we disagree.

Background. The trial record in this case has been problematic from

the start. The court reporter abandoned the project of transcribing her

stenographic discs before the work was halfway done, and another reporter

took over the job. (P-C.R. at 2705-06.) The new reporter encountered

difficulty deciphering many passages, and a record reconstruction

specialist from Washington State stepped in to assist. (Id.) Other

scopists and proofreaders also helped, using both the discs and audiotapes

of the trial. (P-C.R. Supp. at 8, 11, 13, 22, 31.) Because of the

transcription problems, we granted Ben-Yisrayl five extensions of time to

file a record for appeal. (P-C.R. at 2684, 2693, 2702, 2710, 2718.)

On August 25, 1994, when the record had finally been compiled, Ben-

Yisrayl filed a motion asking this Court for a new trial based on its

remaining gaps and errors. Ben-Yisrayl, 690 N.E.2d at 1146. We denied the

motion. Id. Although Ind. Crim. Rule 5 calls for reporting “all oral

evidence and testimony given in all cases and hearings, including both

questions and answers, all rulings of the judge in respect to the admission

and rejection of evidence and objections thereto, and any other oral

matters occurring during the hearing in any proceeding,” Ind. Appellate

Rule 7.2(C)(2) says: “Incompleteness or inadequacy of the record shall not

constitute a ground for dismissal of the appeal or preclude review on the

merits.” On October 6, 1994, we issued the following order to supplement

the record in accordance with App. R. 7.2(C):

The trial court judge, deputy prosecutor and defense counsel who

participated in Appellant’s trial in this cause shall, to the best of

their abilities, reconstruct the actual testimony or arguments not

accurately depicted in the trial transcript filed in this Court. To

the extent that such testimony cannot be reconstructed, the trial

court judge, deputy prosecutor and defense counsel shall report in

writing the thrust of the inaccurately transcribed testimony or

arguments to the best of their recollection. To the extent that their

memories of the actual testimony or arguments are inadequate to

reconstruct or outline the testimony or arguments, the trial judge,

deputy prosecutor and defense counsel shall report in writing to this

Court whether such testimony or arguments raise any material issue or

relate to any error raised in Appellant’s motion to correct errors.

Ben-Yisrayl, 690 N.E.2d at 1146 (quoting Indiana Supreme Court Order

dated Oct. 6, 1994). The results were due to us by February 1, 1995. Id.

We stayed briefing in the interim. Id.

The trial judge, deputy prosecutor, and trial defense attorneys met as

ordered to fill in the holes in the record. (P-C.R. at 358-416.) After

nearly four days going over the individual errors and omissions cited by

appellate counsel, the State and defense each briefed the few passages on

which they could not reach consensus. (Id., P-C.R. at 2827, 2840.) The

judge reviewed the briefs and adopted the State’s version of three

passages, found two issues duplicative of issues previously briefed, and

deemed the final passage immaterial. (P-C.R. Supp. at 36-37.)

Ben-Yisrayl’s appellate counsel did not report any remaining record

deficiencies to us as our order required. Nonetheless, Ben-Yisrayl argued

on appeal that the record of the pretrial hearing and voir dire was

inadequate to permit review of the change of venue issue. Ben-Yisrayl, 690

N.E.2d at 1147 n.14. Although the claim was forfeited, we addressed it and

determined that the flaws in the record could not have been material to the

issue of the trial venue. Id. at n.14.

The Post-Conviction Claim. Ben-Yisrayl now points out numerous

additional errors and omissions in the record that appellate counsel failed

to identify. He argues that his appellate counsel was ineffective in

waiving review of the overall adequacy of the record.[16] He also argues

that the flaws in the record denied him due process and the right to

meaningful appellate and collateral review. (Appellant’s Br. at 58.) In a

nutshell, he asks us to find that indecipherable portions of the record

raise material issues, and therefore to grant him a new trial without

requiring him to make specific allegations of error. See Ben-Yisrayl, 690

N.E.2d at 1147 n.14.

The State does not deny that a transcript may sometimes be so

deficient as to justify a new trial, but maintains that the post-conviction

court correctly concluded that the record as supplemented in this case is

adequate. (Appellee’s Br. at 18, P-C.R. at 1083-84.) See Gallagher v.

State, 410 N.E.2d 1290, 1292 (Ind. 1980) (“[A] new trial is an appropriate

remedy where there is no usable transcript available for appeal.”)

(emphasis added). See also State v. Perry, 401 N.W.2d 748, 752 (Wis. 1987)

(retrial may be required “in the event that the transcript is so deficient

that there cannot be a meaningful appeal” but “not all deficiencies in the

record nor all inaccuracies require a new trial.”).

We have pored over this record in detail, bearing in mind that a man’s

life is at stake.

Two law clerks have each read all five thousand pages of the trial

record. This author has read hundreds of pages of transcript, focusing

especially on pages identified by Ben-Yisrayl and by the law clerks as

particularly problematic. Other members of the Court have seen transcript

as part of their review of the case.

Ben-Yisrayl presented the post-conviction court with a sixty-one page

list of “errors” that he claims were not addressed on direct appeal. (P-

C.R. at 461-523.) Nearly twenty-two pages cover the change of venue

hearing, which (as noted above) was in fact addressed on direct appeal.

Ben-Yisrayl, 690 N.E.2d at 1147 n.14; (P-C.R. at 489-510). A fair number

of the “errors” listed on the remaining pages are trivial. For example,

many (including one entire page of the list, (P-C.R. at 483)) are simple

misspellings, such as “ajoining,” (P-C.R. at 484), and “imunity,” (P-C.R.

at 487).[17]

Others, however, are more substantial. We have grouped the latter

into three categories, and address each in turn.

Unrecorded Bench Conferences. Most of the bench conferences during

trial were not recorded. (See, e.g., T.R. at 2093, 2668, 3361, 4322.)

This omission would certainly make it unreasonable to require Ben-Yisrayl

to show that any particular allegation of error was preserved by objection

and proper argument, and we do not do so. It is not unreasonable, however,

to require Ben-Yisrayl to articulate some plausible way in which he was

harmed by the lack of record of bench conferences. See, e.g., Jones v.

District Court, 780 P.2d 526, 529-30 n.7 (Colo. 1989) (mandamus action;

state law and rules of court required a record of bench conferences but any

failure to record all trial proceedings is subject to fact-specific

harmless error analysis).

Here, the issue that triggered each bench conference can be

ascertained from the record. We know when objections occurred, and how the

court ruled. We also consider the fact that one of Ben-Yisrayl’s appellate

attorneys served as co-counsel at trial, and was presumably familiar with

the issues raised and argued in sidebars. See Hardy v. United States, 375

U.S. 277 (1964) (holding that court-appointed trial counsel who also

represents the indigent defendant on appeal gets at least the transcript

relevant to the points of error assigned; if new counsel represents the

indigent on appeal, the entire transcript is required).

The lack of bench conference records certainly suggests that a

reviewing court should take an appropriately liberal approach to issues

that might otherwise be considered waived at trial for lack of either

objection or argument. It also justifies giving Ben-Yisrayl the benefit of

the doubt in speculating about what may have been discussed during any of

the unrecorded sidebars. It does not, however, relieve Ben-Yisrayl

entirely of his obligation to make issue-specific claims of error. See

App. R. 8.3(A)(7).

The Suppression Hearing. By brief, (T.R. at 528, 536), and at a

pretrial hearing, (T.R. 2nd Supp. at 188, 328), Ben-Yisrayl argued that his

confessions should be suppressed because his arrest was not supported by

probable cause. The court rejected this argument. Ben-Yisrayl, 690 N.E.2d

at 1152. On direct appeal Ben-Yisrayl again claimed that his confessions

were the fruit of an illegal arrest. Id. He did not argue that the gaps

in the record precluded meaningful review of this claim. We addressed the

issue on the merits and rejected his argument. Id.

In his post-conviction claim, Ben-Yisrayl points to numerous

“undecipherables” in the 158-page suppression hearing transcript in partial

support of his overall claim that the trial record is materially deficient.

(T.R. 2nd Supp. at 188-346; P-C.R. at 512-23.) We implicitly rejected

this argument on direct appeal when we considered and rejected his

suppression argument on the merits.[18]

We have revisited the suppression hearing record in light of Ben-

Yisrayl’s lengthy post-conviction list of record errors. Many of the

“undecipherables” are on topics that are extraneous, such as preliminaries

on the hearing mechanics, (see, e.g., P-C.R. 2nd Supp. at 189-90),

formalities preceding summary arguments, (see, e.g., id. at 305, 330), an

objection by the State that was overruled, (see id. at 250-51), and the

court’s explanation for telling defense counsel to rephrase a leading

question (see id. at 252). Others are responses to questions, where a

follow-up question makes clear what the substance of the response was.[19]

(See, e.g., id. at 234-35, 237-40, 247-48, 254-55, 260, 264, 268, 282.)

Although there are passages that contain more serious flaws, we again

conclude that these gaps, viewed in an overall context, are not severe

enough to relieve Ben-Yisrayl of his burden of making specific claims of

error. Based on the state of the record we would not penalize him by

treating any substantive suppression arguments as waived for failure to

cite where the issue was raised and preserved at trial. The flaws in the

record are not material, however, and we stand by our previous implicit

conclusion that the record regarding the suppression claim is sufficient.

Other Miscellaneous Errors and Omissions. A number of brief passages

during voir dire and witness testimony contain incoherent words or phrases.

Some of these problems were resolved during the reconstruction meetings,

in which both of Ben-Yisrayl’s trial attorneys actively participated. (P-

C.R. at 358-414.) At post-conviction, Ben-Yisrayl points to additional

record deficiencies that appellate counsel failed to identify, plus a few

that the reconstruction meetings failed to resolve.[20] (P-C.R. at 461-

88.)

Each entry on Ben-Yisrayl’s errata list must be viewed in the context

of the surrounding record. In each instance the subject matter of the

discussion is sufficiently obvious from the record preceding and following

the cited deficiency to allow specific claims of error. Again, we find no

material defect(s) in the record.

Summary. Trial records are rarely if ever perfect, and this record is

far from the best. We conclude, however, that none of the errors and

omissions raise material issues. Ben-Yisrayl’s appellate counsel was

therefore not ineffective for failing to challenge the overall sufficiency

of the record, and Ben-Yisrayl has received due process, including

meaningful appellate and collateral review.

Conclusion

We affirm the decision of the post-conviction court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

-----------------------

[1] Ben-Yisrayl cites other state and federal constitutional provisions but

offers specific arguments only on the right of a defendant to present a

defense under the Sixth and Fourteenth Amendments to the U.S. Constitution

and Ind. Const. art. I, § 13. His other constitutional claims are

therefore waived under Ind. Appellate Rule 8.3(A)(7).

[2] In a sentencing hearing, “The jury or the court may consider all the

evidence introduced at the trial stage of the proceedings, together with

new evidence presented at the sentencing hearing.” Ind. Code Ann. § 35-50-

2-9(d)(West 1993).

[3] “In the sentencing hearing after a person is convicted of murder, the

state must prove beyond a reasonable doubt the existence of at least one

(1) of the aggravating circumstances alleged.” Ind. Code Ann. § 35-50-2-

9(a)(West 1993).

[4] Specifically, Ben-Yisrayl claims that the jury’s reliance on the

evidence presented in the guilt phase of trial to make its determination

regarding the death penalty violated his (1) Fourteenth Amendment right to

due process for failing to follow the proper procedure for an Indiana

penalty trial; (2) Sixth and Eighth Amendment rights to the protection

provided by a bifurcated proceeding; and (3) Sixth Amendment right to have

a jury decide beyond a reasonable doubt from “facts properly before the

jury.” (Appellant’s Br. at 24-26.)

[5] When Ben-Yisrayl’s appellate counsel, Gary S. Germann, was questioned

during Ben-Yisrayl’s post-conviction hearing as to why he did not raise a

federal constitutional claim regarding the jury’s death sentence

determination, German responded, “I did not consider it a United States

Constitutional issue at the time.” (P-C.R. at 1477.)

[6] See Ind. Code Ann. § 35-50-2-9(d)(West 1993).

[7] Ben-Yisrayl, 690 N.E.2d at 1151-52.

[8] The challenged instruction defined reasonable doubt as “a fair, actual,

and logical doubt that arises in your mind after an impartial consideration

of all the evidence and circumstances in the case.” (T.R. 2nd Supp. at

13.)

[9] This instruction told jurors to “attempt to fit the evidence to the

presumption that the defendant is innocent and the theory that every

witness is telling the truth.” (T.R. 2nd Supp. at 3.) The same

instruction told jurors, “In considering the testimony of any witness, you

may take into account . . . any interest, bias or prejudice the witness may

have . . . . ” (Id.)

[10] This statute lists various “good causes” for challenging a prospective

juror in a criminal trial. Under § 5(a)(3), cause arises in a capital case

“[i]f . . . the person entertains such conscientious opinions as would

preclude the person from recommending that the death penalty be imposed.”

[11] Ind. Const. art. I, § 23 says: “The General Assembly shall not grant

to any citizen, or class of citizens, privileges or immunities, which, upon

the same terms, shall not equally belong to all citizens.”

[12] We held, “[E]ven if the evidence was erroneously admitted, which we do

not decide, such error would be harmless.” Ben-Yisrayl, 690 N.E.2d at

1147.

[13] Ind. Code Ann. § 35-47-5-4.1 (West 1990) criminalizes the possession

of a sawed-off shotgun.

[14] Ind. Code Ann. § 35-47-1-10 (West 1990) defines a “sawed-off” shotgun

as “having one (1) or more barrels less than eighteen (18) inches in

length; and (2) any weapon made from a shotgun . . . if the weapon as

modified has an overall length of less than twenty-six (26) inches.”

[15] The post-conviction court’s findings included:

Maxwell’s testimony was that he had seen the shotgun alleged to be the

murder weapon at Petitioner’s residence (R. 4343-44), that he had seen

Petitioner handle the shotgun “a couple of times” (R. 4345), and that

while handling the shotgun Petitioner had said that “he had did some

damage with it” (R. 4345). Maxwell stated that in his statement to

the FBI on February 7, 1991, he told the FBI that Petitioner had said

“he did some damage with it” (R. 4347). On cross-examination, defense

counsel elicited that in his deposition, Maxwell had said he saw

Petitioner with the shotgun once, and hadn’t actually seen Petitioner

in physical possession of the shotgun, but that it was on Petitioner’s

bed (R. 4354-56). Counsel also elicited from Maxwell that in his

deposition he had said that the only conversation about the shotgun

was that Petitioner had said that he had just shot a hole in the

mattress when Maxwell and McGee walked in, and hadn’t said anything

about doing damage with the shotgun (R. 4359-60, 4361, 4363, 4364).

Finally, defense counsel elicited that Petitioner never told Maxwell

that he (Petitioner) was involved in either the tailor shop murders in

Gary or either of the two murders charged in this case, the Hudson Oil

murder or the Howard Johnson’s murder (R. 4371-72). On recross

examination, counsel got Maxwell to agree that he “didn’t indicate

that Chris said he had done some damage with it, just that this baby

here has done some damage” (R. 4378).

(P-C.R. at 1077-78.)

[16] Alternatively, he argues that he was constructively denied the

assistance of counsel altogether, citing Penson v. Ohio, 488 U.S. 75

(1988)(defendant was denied the assistance of counsel when his appointed

appellate attorney withdrew after filing a conclusory statement that the

defendant had no meritorious claims, and the court refused to appoint

replacement counsel). The facts here are not analogous, and we analyze Ben-

Yisrayl’s ineffectiveness claim under the usual Strickland standard.

[17] Others include capitalization errors (such as failing to capitalize

the word “State,” (P-C.R. at 480)), spacing errors (such as failing to

insert a space between “speaking” and “with,” (P-C.R. at 480)), and other

trivial oversights (such as failing to insert “the” in the court’s

instruction to a witness “Please be seated in [the] chair there, ma’am,” (P-

C.R. at 486)). On some occasions, the record misidentifies a speaker or

characterizes the continuation of a question as an answer, but in those

cases the error and the appropriate correction are apparent, as shown by

the fact that Ben-Yisrayl’s errata listing indicates what obviously

happened. (See, e.g., P-C.R. at 462, 466, 478.) Several errors are listed

twice. (P-C.R. at 464-65, 482-83.)

[18] We were aided in arriving at this determination by the fact that Ben-

Yisrayl had raised an identical claim when he appealed his convictions for

the Balovski murders. Ben-Yisrayl, 690 N.E.2d at 1152. His factual

allegations and argument were the same. Id.

[19] One example is the question, “So, you took them to three other

locations?” (P-C.R. 2nd Supp. at 260.) Ben-Yisrayl lists as error the

fact that the answer is “(Undecipherable).” (Id.) What he does not add is

that the next question is prefaced, “Two more, alright. . . .” (Id.)

[20] A very few errors or omissions listed by appellate counsel, all during

voir dire, were not addressed because the list was off by one page. For

example, the reconstruction meeting participants found “nothing material

absent” on page 1201, lines eight and nine, which were cited in Ben-

Yisrayl’s errors list. (P-C.R. at 364.) They did not discuss illegible

words in lines eight and nine of page 1200. (Id.) They soon figured out

the discrepancy and adjusted the page numbers shown on the list as they

went along. (P-C.R. at 365-66.)