Ben-Yisrayl v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Karen Freeman-Wilson

Public Defender of Indiana Attorney General of Indiana

Steven H. Schutte Arthur Thaddeus Perry

Emily Mills Hawk Deputy Attorney General

Deputy Public Defenders Indianapolis, Indiana

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

OBADYAH BEN-YISRAYL, )

F/K/A CHRISTOPHER PETERSON )

)

Appellant (Petitioner Below), )

)

v. ) Cause No. 45S00-9708-PD-460

)

STATE OF INDIANA, )

)

Appellee (Respondent Below). )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable James L. Clement, Judge

Cause No. 45G04-9103-CF-42

May 25, 2000

SHEPARD, Chief Justice.

Appellant Obadyah Ben-Yisrayl, formerly known as Christopher D.

Peterson, was convicted of two counts of murder for killing Ilija (Eli) and

George Balovski in their tailor shop in Gary, Indiana. The jury found him

guilty, and the trial court imposed the death penalty. Ben-Yisrayl

appealed his convictions and sentence, and we affirmed. Peterson v. State,

674 N.E.2d 528 (Ind. 1996), cert. denied, 522 U.S. 1078 (1998). The trial

court subsequently denied his petition for post-conviction relief. He now

appeals that denial. We affirm.

On the afternoon of December 18, 1990, the Balovski brothers were

found dead inside their tailor shop from shotgun wounds to the head. A

sawed-off shotgun later recovered from Ben-Yisrayl’s apartment fired a

spent casing found at the scene. Ben-Yisrayl made incriminating admissions

to an acquaintance and gave a formal statement to the police admitting the

shootings. Id. at 532.

These two deaths were allegedly part of a shotgun shooting spree in

northwestern Indiana involving at least ten victims. (See Appellant’s Br.

at 50.) Ben-Yisrayl was charged in five separate informations ­ four for

murder, and one for robbery and attempted murder. Of the four murder

trials, Ben-Yisrayl was found guilty in two and not guilty in two. These

different results are part of the basis upon which he brings his current

appeal.

Ben-Yisrayl raises several issues for our review, which we restate

as:

I. Whether he was denied effective assistance of counsel at pre-

trial proceedings when his counsel elected not to seek a change

of venue;

II. Whether he was denied effective assistance of counsel at trial;

III. Whether he was denied effective assistance of counsel during the

penalty phase when his counsel presented no mitigating evidence

in the sentencing hearing before the judge;

IV. Whether the trial court erred in imposing the death penalty in

light of the jury’s recommendation to the contrary; and

Whether alleged errors in the jury instructions amounted to

fundamental error.

Standard of Review for Post-Conviction

Post-conviction procedures do not afford convicts the opportunity for

a "super-appeal." Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999).

Rather, they create a narrow remedy for subsequent collateral challenges to

convictions. Id. Petitioners must establish their grounds for relief by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A

petitioner appealing the denial of post-conviction relief labors under an

even heavier burden:

On appeal [from the denial of post-conviction relief], petitioner

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

such cases, it is only where the evidence is without conflict and

leads to but one conclusion, and the trial court has reached the

opposite conclusion, that the decision will be disturbed as being

contrary to law.

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

999 (1994). Such a petitioner must show that the evidence, taken as a

whole, "leads unerringly and unmistakably to a conclusion opposite to that

reached by the trial court." Weatherford v. State, 619 N.E.2d 915, 917

(Ind. 1993).

In the present case, the post-conviction court entered findings of

fact and conclusions of law in accordance with Indiana Post-Conviction Rule

1(6). A post-conviction court's findings and judgment will be reversed

only upon a showing of clear error – “that which leaves us with a definite

and firm conviction that a mistake has been made.” State v. Moore, 678

N.E.2d 1258, 1261 (Ind. 1997), cert. denied, 523 U.S. 1079 (1998). In

short, the question before us is whether “there is any way the trial court

could have reached its decision." Id.

Standard of Review for Ineffective Assistance

We analyze ineffective assistance of counsel claims under the two-part

test announced in Strickland v. Washington, 466 U.S. 668 (1984). Benefiel,

716 N.E.2d at 912. To succeed, the petitioner must demonstrate both

deficient performance and resulting prejudice. Id. A deficient

performance is that which falls below an objective standard of

reasonableness. Douglas v. State, 663 N.E.2d 1153 (Ind. 1996). Prejudice

exists when "there is a reasonable probability that the result of the

proceeding would have been different but for defense counsel’s inadequate

representation." Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996).

Furthermore, counsel's performance is presumed effective, and a

petitioner must offer strong and convincing evidence to overcome this

presumption. Benefiel, 716 N.E.2d at 912. The standard of review for a

claim of ineffective assistance of appellate counsel is the same as for

trial counsel. Trueblood v. State, 715 N.E.2d 1242 (Ind. 1999).

Of course, a capital defendant in this state also receives the

protection of Indiana Criminal Rule 24. We are now in the tenth year of

the operation of Rule 24. It creates minimum standards for the criminal

litigation experience, specialized training, compensation, and caseload of

lawyers appointed in capital cases. Both prosecutors and defense counsel

agree that “Rule 24 ha[s] led to improved representation by defense lawyers

in capital cases.” Norman Lefstein, Reform of Defense Representation in

Capital Cases: The Indiana Experience and Its Implications for the Nation,

29 Ind. L. Rev. 495, 408 (1996). “[A] death penalty verdict returned

[since the advent of Rule 24 is] more likely to be sustained on appeal, and

the appellate court [is] less apt to find that defense counsel was

ineffective.” Id. at 509. Ben-Yisrayl’s counsel were appointed under the

requirements of this rule. Compare Ind. Criminal Rule 24 (effective Jan.

1, 1990) with (T.R. at 3, 12) (counsel appointed Mar. 4, 1991).

Moreover, for more than half a century, Indiana has offered state-

financed legal assistance to prisoners seeking post-conviction relief.

Ind. Code Ann. § 33-1-7-1 (West 1996) (office of Public Defender created

1945). Funded at 5.6 million dollars in the current year, this state

office employs a substantial contingent of lawyers specializing in capital

collateral litigation. These lawyers have funds at their disposal for

mitigation specialists, DNA tests, mental health professionals, and the

like. It is these lawyers who have brought the present petition for Ben-

Yisrayl.

Ineffective Assistance of Counsel - Pre-Trial

Ben-Yisrayl claims that his trial counsel should have sought a change

of venue from Lake County due to allegedly prejudicial pre-trial

publicity.[1] (Appellant’s Br. at 50.)

“A defendant is entitled to a change of venue upon a showing that

jurors are unable to disregard preconceived notions of guilt and render a

verdict based on the evidence.” Moore, 678 N.E.2d at 1262. The decision

to seek a change of venue is generally a matter of trial strategy that we

will not second-guess on collateral review. Id.

Appellant acknowledges that his trial counsel had already secured two

acquittals in Lake County before the trial of this cause commenced.

(Appellant’s Br. at 59.) Appellant had also been tried for two murders in

an adjacent county, Porter County, and had been sentenced to death. (Id.

at 52 (citing P-C.R. at 3113-18).) We think it reasonable strategy for Ben-

Yisrayl’s counsel to have elected to keep the trial in Lake County, the

locale of two acquittals, rather than seeking to have it moved elsewhere.

Ben-Yisrayl argues that the negative media and public reaction to the

two acquittals in Lake County and the positive reactions to the conviction

in Porter County exacerbated pre-existing sentiment in favor of conviction.

(Id.) We have held that counsel was not ineffective for electing not to

seek a change of venue where there is insufficient evidence to conclude the

defendant could not have received a fair trial in the county in which the

case was tried. Moore, 678 N.E.2d at 1262. Such is the case here.

While there was extensive publicity on the shotgun shootings, Ben-

Yisrayl has failed to prove that the jurors maintained preconceived notions

of guilt and were unable to render a verdict based on the evidence. All of

the jurors stated they would be fair and impartial,[2] and the trial court

continuously admonished them to steer clear of media coverage of the

trial.[3] Moreover, the jury that heard the case eventually recommended a

term of years rather than the death penalty, hardly a sign that they had

been poisoned against Ben-Yisrayl.

Ben-Yisrayl’s counsel were not ineffective on this basis.

Ineffective Assistance of Counsel – Guilt Phase

Ben-Yisrayl claims that he was denied effective assistance of trial

counsel for several reasons, which we address in turn.

A. Witness Testimony. Ben-Yisrayl first claims that his trial

counsel were ineffective for failing to call a witness he claims would have

offered exculpatory evidence.

Before his trial on the Balovski murders, Ben-Yisrayl was tried

separately in three trials for other murders thought to be part of the same

shooting spree. He was acquitted in two trials, but was ultimately

convicted for the Balovski murders. In his two acquittal trials, the

defense presented evidence of the presence of a “light-skinned man” seen in

the general vicinity of the crimes.[4] According to an affidavit given by

Patrick Fleming, part of the post-conviction record, a man fitting this

description was near the Balovski tailor shop on the afternoon of the

murders. Ben-Yisrayl argues that his trial counsel’s failure to call

Fleming to present this evidence at trial constituted ineffective

assistance.[5]

In Fleming’s affidavit, he says that at 4:10 or 4:20 p.m. on the

afternoon of the murders, he went to Eli Balovski’s tailor shop to drop off

some clothes. As he was leaving, he made a U-turn and drove past a car

sitting across the street from the tailor shop. He noticed a man sitting

in the car, and described the man as “white” with dark, short hair and

“dark eyes.” (P-C.R. at 2004.) As he was driving past, he saw the man

reach between his legs to make “sure [Fleming] couldn’t see what he had

there.” (Id.) Fleming thought the man had a gun. (Id.) Fleming also

thought the man resembled a police composite sketch of the Balovski murder

suspect, which had been published in area newspapers. (Id.)

Assuming for the sake of argument that effective lawyering would mean

calling Fleming, this Court will not declare counsel ineffective for

failure to call a particular witness absent a clear showing of prejudice.

Grigsby v. State, 503 N.E.2d 394 (Ind. 1987). The bulk of Ben-Yisrayl’s

claim of prejudice rests on the fact that he was acquitted in two trials

where evidence of a “light-skinned man” was presented, but convicted in a

trial where this evidence was not. We decline, however, to attach this

much significance to the acquittals.

The evidence presented at the first two trials regarding another

possible shooter was much more compelling than that presented in Fleming’s

affidavit. In one case, an eyewitness testified that she was sitting in

the victim’s car when the victim was shot, and observed the shooter

standing next to the car window. She described the shooter as a “light

complected male wearing a trench coat.” (P-C.R. at 2360.)

In another case, two witnesses testified that they were driving down

the street when they observed a “white male with long hair and a trench

coat” walking toward a car parked near an ATM. (P-C.R. at 2361.) They

also testified that the man was carrying a “cylindrical object parallel to

his leg.” (Id.) After passing the man, they drove another one hundred

feet, then heard “the blast of two shotgun shells.” (Id.)

These witnesses thus were able to link the “light-skinned” man to the

shootings (indeed, in one case, a witness identified a man fitting this

description as the shooter). By contrast, Fleming’s observations do not

place anyone at the crime scene at the time of the shooting. Rather,

Fleming places someone across the street a half hour before the shootings.

Although Fleming claims that he thought the man had a gun in his lap, he

did not actually see a gun.

There was substantial evidence against Ben-Yisrayl. Antwion McGee, a

friend of Ben-Yisrayl’s, testified that when he learned that “the shotgun

killer” had killed the Balovskis, he called Ben-Yisrayl about the murders.

(T.R. at 3366, 3368.) At that time, Ben-Yisrayl told McGee “[t]hat he had

got ‘em.” McGee said, “Got who?” and Ben-Yisrayl replied that he had “got

‘em and then he would come by to get [McGee].” (T.R. at 3368-69.) McGee

later met Ben-Yisrayl and Ben-Yisrayl told him “[t]hat he had got the guys

at the tailor shop.” (T.R. at 3369.) Ben-Yisrayl then gave McGee a

detailed account of the murders. (T.R. at 3369-70.) McGee also saw a

shotgun in Ben-Yisrayl’s bedroom closet. (T.R. at 3085-87, 3373.)

McGee later told the police that Ben-Yisrayl was the person who had

killed the Balovskis. (T.R. at 3376-77.) After receiving this

information, the police searched Ben-Yisrayl’s closet and found the

shotgun. (See T.R. at 3273.) Test results indicated that the shotgun

found in Ben-Yisrayl’s closet fired a spent shell casing recovered at the

site of the Balovski killings. (T.R. at 3119-20.)

After being taken into custody, Ben-Yisrayl confessed to shooting the

Balovskis. (T.R. at 2911.) He gave a detailed account of the shootings,

indicating that he had entered the tailor shop, had gone downstairs and

shot someone, and had then gone upstairs to shoot another person. (T.R. at

4632.)

Based on the foregoing, it is difficult to imagine that Ben-Yisrayl

would have been acquitted but for counsel’s failing to call Fleming as a

witness. Ben-Yisrayl’s claim about Fleming’s testimony certainly does not

unerringly or unmistakably lead to a conclusion contrary to that reached by

the post-conviction court. See Weatherford, 619 N.E.2d at 917.

B. Expert Testimony About False Confessions. Ben-Yisrayl also says

that his counsel were ineffective for failing to call an expert witness to

testify about the existence of and reasons behind “false confessions.”[6]

(Appellant’s Br. at 26.)

At the post-conviction hearing, Ben-Yisrayl presented an affidavit

from Dr. Richard Ofshe, an expert in sociology and psychology who has

testified in other courts regarding the “mechanisms of control and

influence” in police interrogations. (P-C.R. at 3127-28.) Having reviewed

Ben-Yisrayl’s case, Ofshe said that he believed Ben-Yisrayl’s confession

was indicative of a false confession. (P-C.R. at 3133.) This belief was

based on Ofshe’s opinion that certain facts given in Ben-Yisrayl’s

statement were inconsistent with facts presented at trial. (P-C.R. at

3132.)

After examining Ofshe’s statement, we cannot conclude that expert

testimony regarding false confessions would have led to a conclusion

opposite that reached by the trial court. At trial, Detective Reynolds,

who conducted Ben-Yisrayl’s interrogation, was vigorously cross-examined

about inconsistencies between Ben-Yisrayl’s statement and the facts

presented at trial. For example, Ben-Yisrayl said in his statement that he

parked his car in front of the tailor shop. This fact, however, was not

corroborated by any other witnesses. (T.R. at 2971-72.) Reynolds was also

questioned about a discrepancy between Ben-Yisrayl’s statement and other

witness statements regarding whether money had been stolen from the

Balovskis. (See T.R. at 2994-95.) Lastly, Reynolds was extensively cross-

examined regarding the amount of detail, or lack thereof, in Ben-Yisrayl’s

statement. (T.R. at 2976-87.)

Ben-Yisrayl has made no showing that expert testimony regarding false

confessions would have led to an acquittal. No ineffectiveness has been

shown here. See Drake v. State, 563 N.E.2d 1286, 1290 (Ind. 1990).

C. Admission of the Shotgun. At trial, the State introduced into

evidence a shotgun that was seized from Ben-Yisrayl’s bedroom closet. This

shotgun was linked to the shootings. Ben-Yisrayl now contends that the

shotgun was wrongfully seized and that his trial counsel were ineffective

in failing to raise and preserve this issue at trial. By failing to

preserve this issue, Ben-Yisrayl claims, his appellate counsel were unable

to assert the issue on direct appeal, “where relief would have been

granted.” (Appellant’s Reply Br. at 7.)

The shotgun in question was seized in conjunction with a search of Ben-

Yisrayl’s mother’s residence. The trial court admitted the shotgun after

finding that the firearm was openly visible and that the officers had

probable cause to believe it was “sawed-off,” and thus contraband.

Peterson, 674 N.E.2d at 535. Ben-Yisrayl now maintains that the shotgun

was not contraband because it does not fall under the statutory definition

of a sawed-off shotgun.

Under Ind. Code § 35-47-5-4.1, it is illegal to possess a sawed-off

shotgun. A sawed-off shotgun is:

1) a shotgun having one (1) or more barrels less than eighteen (18) inches

in length; and

2) any weapon made from a shotgun (whether by alteration, modification, or

otherwise) if the weapon as modified has an overall length of less then

twenty-six (26) inches.

Ind. Code Ann. § 35-47-1-10 (West 1986) (formerly Ind. Code § 35-23-9.1-1;

repealed and recodified 1983).

At Ben-Yisrayl’s trial, Officer John Pruzin testified that the firearm

seized from Ben-Yisrayl’s closet measured twenty-six and a half inches, but

had a barrel of only sixteen or sixteen and a half inches. (T.R. at 3103.)

Ben-Yisrayl contends that because the shotgun does not meet part two of

the statute, it is excluded from the definition of sawed-off shotgun.

In Brook v. State, 448 N.E.2d 1249 (Ind. Ct. App. 1983), our Court of

Appeals examined the statute defining sawed-off shotgun. The statute was

then found at Ind. Code § 35-23-9.1-1 and read:

“Sawed-off shotgun” means a shotgun having one (1) or more

barrels less than eighteen (18) inches in length and any weapon made

from a shotgun (whether by alteration, modification, or otherwise) if

such weapon as modified has an overall length of less than twenty-six

(26) inches.

The defendant Brook challenged his conviction for possessing a sawed-

off shotgun because his shotgun had been modified to have a 15 and 7/8 inch

barrel, but was still twenty-nine inches in length. Brook argued that the

use of the conjunction “and” in the statute mandated that the shotgun both

have a barrel less than eighteen inches and be less than twenty-six inches

in length. Id. at 1250-51. The court disagreed, holding that the language

of the statute does not set forth a single definition of sawed-off shotgun

with two requirements. Rather, the barrel and length limits are two

independent considerations. Id. at 1251.

Ben-Yisrayl’s present counsel argue that the 1983 recodification of

the handgun definition effectively overruled Brook by re-enacting the same

words displayed on the printed page as two subparagraphs rather than as one

large one. Although the statute was recodified, we cannot conclude that

this indicated a legislative response to Brook since the legislature

approved the change in the statute approximately one month before Brook was

decided. Compare Pub. Law No. 311-1983, Sec. 32 (approved April 22, 1983)

with Brook, 448 N.E.2d 1249 (decided May 26, 1983).

Ben-Yisrayl’s trial counsel were not providing substandard legal

assistance by failing to make such a contention.

D. Jury Instructions. Ben-Yisrayl claims that alleged errors in the

jury instructions warranted the granting of post-conviction relief. Ben-

Yisrayl did not object to any of the instructions he now wishes to

challenge. Instruction errors are generally unavailable on appeal unless

proper specific objections are made at trial. Winegeart v. State, 665

N.E.2d 893 (Ind. 1996). With the exception of ineffective assistance of

counsel, which may be raised on either direct appeal or in post-conviction

proceedings, if an issue was known and available but not raised on direct

appeal, it is waived. Benefiel, 716 N.E.2d at 911. We therefore review

these subclaims for ineffective assistance of counsel.

1. Mens Rea. Ben-Yisrayl claims that Final Instruction 3

inadequately defines the mental states “knowingly” and “intentionally.”

(Appellant’s Br. at 39.) He argues that, because the instruction seems to

apply the states of mind to Ben-Yisrayl’s conduct, rather than the

consequence of his conduct, the definitions are incomplete. (Id.)

The instruction in question defined the terms “knowingly” and

“intentionally” precisely as they are defined by statute. See Ind. Code

Ann. § 35-41-2-2(a), (b) (West 1986). Moreover, when those definitions are

read immediately after the definition of murder, as they were in

Instruction 3, they more than clearly indicate that the mental states must

be applied to the result of killing, rather than the act of shooting. The

instruction as a whole provides:

MURDER is defined by Statute in Indiana in pertinent part as

follows:

A person who knowingly or intentionally kills another human

being commits Murder, a felony.

A person engages in conduct “intentionally” if, when he engages

in the conduct, it is his conscious objective to do so. A person

engages in conduct “knowingly” if, when he engages in the conduct, he

is aware of a high probability that he is doing so.

(T.R. at 382 (emphasis added).)

In effect, Ben-Yisrayl says his lawyers should have contended that

this instruction does not require, say, intentional conduct aimed at the

outcome of death. Ben-Yisrayl acknowledges that Andrews v. State, 441

N.E.2d 194 (Ind. 1982), bears upon this claim of error. (Appellant’s Br.

at 41.) Andrews states that “[i]t is well-settled that the necessary

intent to commit murder may be inferred from the intentional use of a

deadly weapon in a manner likely to cause death.” Andrews, 441 N.E.2d at

201.

Ben-Yisrayl’s counsel were not deficient for failing to make this

argument.

2. Reasonable Doubt. Ben-Yisrayl claims that Final Instruction 6

inadequately defines reasonable doubt. (Appellant’s Br. at 42.) He argues

that the instruction misassigned the burden of proof when it informed the

jury that a reasonable doubt is one that “arises,” rather than “remains,”

in a juror’s mind after she or he has heard all the evidence. (Id.) He

contends that reasonable doubt does not necessarily derive from the

evidence, but instead persists if the State has not defeated it. (Id.)

We decided this very issue long before Ben-Yisrayl’s lawyers tried

his case, in Hoskins v. State, 441 N.E.2d 419 (Ind. 1982).[7] Hoskins

objected to the word “arises” in a reasonable doubt instruction because he

claimed the word did not recognize that doubt could be created from the

beginning of the case or notwithstanding the case. Id. at 425. Like Ben-

Yisrayl, he suggested the word “remains” as a replacement, among other

possibilities. Id.

The challenged instruction is indistinguishable from those regularly

given by trial courts and approved by appellate courts in Indiana. Id. at

425-26. We have held that the instruction sets out “the proper manner in

which a juror is to consider reasonable doubt[, because a] doubt cannot

arise from some fact or circumstance outside the evidence or something in

the juror’s mind that is not based upon an impartial consideration of all

the evidence and circumstances.” Id. at 426; see also Conner v. State, 711

N.E.2d 1238, 1246-47 (Ind. 1999) (holding that “arises” reasonable doubt

instruction, when read with other instructions, does not erroneously inform

jury regarding presumption of innocence), pet. for cert. filed, April 7,

2000; but cf. Winegeart, 665 N.E.2d at 901-03 (criticizing other aspects of

a similar reasonable doubt instruction).

The instruction is proper. Ben-Yisrayl’s counsel were not deficient.

3. Truthfulness of Witnesses. Ben-Yisrayl claims that Final

Instruction 16 improperly shifted the burden of proof to the defense by

informing the jury that it should “reconcile the evidence . . . upon the

theory that each and every witness has spoken the truth.” (Appellant’s Br.

at 44 (quoting T.R. at 395).) He argues that jurors should have

additionally been instructed to carefully assess the testimony of those

with corrupt motives. (Id. at 44-45.) They were. Instruction 16 further

provides,

You may take into consideration [witnesses’] conduct and demeanor

while testifying; their interest, if any[,] or want of interest in the

result of the trial; their motive, if any, in testifying; their

relation to or feeling for or against the defendant, the alleged

victim or the state of Indiana; the probability or improbability of

their statements; their opportunity to observe and know of the matters

of which they testify; and any factors in evidence which in your

judgment may affect their testimony.

(T.R. at 395.)

Additionally, we have previously held presumption of truthfulness

instructions to be proper. Timberlake v. State, 690 N.E.2d 243, 258-59

(Ind. 1997) (citing Holmes v. State, 671 N.E.2d 841, 858 (Ind. 1996);

Lottie v. State, 273 Ind. 529, 535, 406 N.E.2d 632, 637 (1980)), cert.

denied, 525 U.S. 1073 (1999); see also Cupp v. Naughten, 414 U.S. 141

(1973) (holding that a similar instruction did not violate the Due Process

Clause of the 14th Amendment).

Ben-Yisrayl’s counsel were not deficient on this basis.

Ineffective Assistance of Counsel – Penalty Phase

Ben-Yisrayl argues that his counsel were ineffective at the penalty

phase because they did not present any mitigating evidence at the

sentencing hearing before the judge. (Appellant’s Br. at 48.) He tendered

evidence to the post-conviction court that he claims would have convinced

the trial court to sentence him to a term of years, rather than to death.

Specifically, he cites the affidavits of his ex-girlfriend, (P-C.R. at 2524-

27), a friend’s mother, (P-C.R. at 2529-31), and an administrator at his

high school, (P-C.R. at 2535-38).[8]

The post-conviction evidence was substantially the same as that which

was presented during the penalty phase of the jury trial and thus heard by

the jury. (T.R. at 4505, 4514-55.) Two jail guards, a good friend, the

mother of his children, and his mother testified on Ben-Yisrayl’s

behalf.[9] (Id.)

The similarities in witnesses and subject matter are such that Ben-

Yisrayl has not shown his trial counsel’s performance fell below reasonable

standards.[10]

Ben-Yisrayl also claims that information contained in the affidavits

could have been used at trial to bolster a residual doubt claim.

(Appellant’s Br. at 49 (citing P-C.R. at 2524-27, 2529-31).) As we stated

in Miller v. State, 702 N.E.2d 1053, 1069 (Ind. 1998), cert. denied, 120 S.

Ct. 806 (2000), “We find such a claim too attenuated to serve as a ground

for ineffective assistance of counsel. In our view, counsel ought have no

obligation to argue to the jury that its just-returned unanimous

determination of guilt ought to be revisited.” The failure to present

evidence of residual doubt at the penalty phase was not ineffective

assistance of counsel.

Propriety of Death Sentence

On direct appeal, Ben-Yisrayl challenged the constitutionality of Ind.

Code § 35-50-2-9, which allows the trial court to make final sentencing

determinations, despite the jury’s recommendation to the contrary. Ben-

Yisrayl also challenged the propriety of the death sentence as applied in

his case. Peterson, 674 N.E.2d at 539. We held that our statutory system

of jury recommendation and judicial decision does not violate our

Constitution. Id. at 540-42.

Today, Ben-Yisrayl seeks to establish that when the General Assembly

wrote, “The court is not bound by the jury’s recommendation,”[11] it meant

the sentencing court was bound by a recommendation if it was a

recommendation for a term of years. The post-conviction court held for the

State on this claim, saying it was res judicata. It was not res judicata.

Rather, it was available on direct appeal and thus not available as a claim

in this collateral proceeding.

Conclusion

Accordingly, we affirm the decision of the post-conviction court.

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

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

[1] Ben-Yisrayl also raises this issue as a free-standing claim under Post-

Conviction Rule 1. (Appellant’s Br. at 50.) Because this issue “was known

and available but not raised on appeal, it is waived." Rouster v. State,

705 N.E.2d 999, 1003 (Ind. 1999). We therefore address this claim only as

it reflects on the performance of counsel.

He also claims that his counsel should have “at least” sought a

change of venire. He fails to support this contention with argument. In

accordance with the Rules of Appellate Procedure, we will not address

claims without argument. Ind. Appellate Rule 8.3(A)(7) ("Each error that

appellant intends to raise . . . shall be set forth specifically and

followed by the argument applicable thereto.").

[2] (T.R. at 544, 697, 886-87, 890, 1053, 1061, 1088, 1155, 1212, 1222,

1228, 1231, 1391-93, 1422-23, 1427, 1435, 1519, 1582, 1585, 1588-89, 1880,

1953-57, 1965-66, 2027, 2056-57, 2061, 2205, 2208, 2300, 2329, 2341, 2343,

2368, 2370, 2379, 2411, 2427-28.)

[3] (T.R. at 3170-86, 3475, 3502-04, 3797-3817, 3818-20, 4115-19, 4260-63,

4272, 4449-4451.)

[4] Ben-Yisrayl describes himself as a “dark-skinned black man.”

(Appellant’s Br. at 16.)

[5] At the time of the post-conviction hearing, there was some disagreement

between the parties as to whether Ben-Yisrayl’s counsel had been provided

with Fleming’s affidavit and police statement. The post-conviction court

found that the evidence had been disclosed. On appeal from the denial of

post-conviction relief, Ben-Yisrayl does not dispute this finding and,

therefore, does not put forth a claim under Brady v. Maryland, 373 U.S. 83

(1963).

[6] Ben-Yisrayl does not contest the admissibility of his confession. This

issue was already raised and resolved on direct appeal. (Appellant’s Br.

at 27.)

[7] Instruction 6 in the present case is identical to the instruction

challenged in Hoskins. It states in relevant part: “A ‘reasonable doubt’

is a fair, actual, and logical doubt that arises in your mind after an

impartial consideration of all of the evidence and circumstances in the

case.” (T.R. at 385); Hoskins, 441 N.E.2d at 425.

[8] These women testified that Ben-Yisrayl is popular, personable and

outgoing, logical and intelligent, respectful and polite, clean and neat,

and responsible. They affirmed that he has a good relationship with his

family, and more specifically with his mother. All three stated that he is

not a violent person, and that they feel he is innocent of the crimes.

Finally, each woman stated that he is not racist, and that he has dated

women of different races. (P-C.R. at 2524-38.)

[9] Witnesses testified in the sentencing recommendation hearing that Ben-

Yisrayl is neat, clean, responsible, and polite. (T.R. at 4516, 4519,

4548.) They said he is not a troublemaker, he doesn’t do inappropriate

things on dates, and he didn’t use drugs or abuse alcohol. (T.R. at 4516,

4519, 4523-24.) He took care of his brothers and sisters as a teenager,

and he took care of his children as an adult. (T.R. at 4533, 4538, 4541-

42.) He has a close relationship with his mother. (T.R. at 4547-49.) His

mother, the mother of his children, and his friend all testified that he is

not violent, and that they believe him to be innocent of the crimes. (T.R.

at 4524, 4528, 4534, 4535.) Finally, his mother testified that he is not

racist, and that he has friends of all races. (T.R. at 4548.)

[10] In fact, the only evidence Ben-Yisrayl now proffers that the

sentencing judge did not hear is that a school administrator thought he was

logical and intelligent, that he gave her a school picture when he

graduated from high school, that he has always sent his friend’s mother a

birthday card, and that he was always welcome in her home. (P-C.R. at 2529-

30, 2536-37.)

[11] Ind. Code Ann. § 35-50-2-9(e) (West Supp. 1990).