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
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 ). )
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-Yisrayls 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 Appellants 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:
Whether he was denied effective assistance of counsel at pre-trial proceedings when his counsel elected not to seek a change of venue;
Whether he was denied effective assistance of counsel at trial;
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;
Whether the trial court erred in imposing the death penalty in light of
the jurys recommendation to the contrary; and
Whether alleged errors in the jury instructions amounted to fundamental error.
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
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-Yisrayls 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.
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. (Appellants 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-Yisrayls 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,
See footnote and the trial court continuously admonished them
to steer clear of media coverage of the trial.See footnote 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-Yisrayls counsel were not ineffective on this basis.
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
See footnote 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 counsels
failure to call Fleming to present this evidence at trial constituted ineffective assistance.See footnote
In Flemings affidavit, he says that at 4:10 or 4:20 p.m. on the
afternoon of the murders, he went to Eli Balovskis 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] couldnt see what he had there. (
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-Yisrayls 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
The evidence presented at the first two trials regarding another possible shooter was
much more compelling than that presented in Flemings affidavit. In one case,
an eyewitness testified that she was sitting in the victims 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, Flemings 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-Yisrayls,
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-Yisrayls 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-Yisrayls closet and found the shotgun. (See T.R. at 3273.)
Test results indicated that the shotgun found in Ben-Yisrayls closet fired a spent
shell casing recovered at the site of the Balovski killings. (T.R. at
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 counsels failing to call Fleming as a witness.
Ben-Yisrayls claim about Flemings 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.
See footnote (Appellants 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-Yisrayls case, Ofshe said that he believed Ben-Yisrayls confession was indicative
of a false confession. (P-C.R. at 3133.) This belief was based
on Ofshes opinion that certain facts given in Ben-Yisrayls statement were inconsistent with
facts presented at trial. (P-C.R. at 3132.)
After examining Ofshes 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-Yisrayls interrogation, was vigorously cross-examined about
inconsistencies between Ben-Yisrayls 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-Yisrayls 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-Yisrayls 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-Yisrayls 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. (Appellants Reply Br. at 7.)
The shotgun in question was seized in conjunction with a search of Ben-Yisrayls
mothers 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:
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 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-Yisrayls trial, Officer John Pruzin testified that the firearm seized from Ben-Yisrayls
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-Yisrayls 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-Yisrayls 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. (Appellants Br. at 39.) He argues that, because the instruction seems to apply the states of mind to Ben-Yisrayls 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. (Appellants 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-Yisrayls counsel were not deficient for failing to make this argument.
2. Reasonable Doubt. Ben-Yisrayl claims that Final Instruction 6 inadequately defines
reasonable doubt. (Appellants 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 jurors 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-Yisrayls lawyers tried his case, in
Hoskins v. State, 441 N.E.2d 419 (Ind. 1982).
See footnote 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 jurors 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-Yisrayls 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. (Appellants 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-Yisrayls counsel were not deficient on this basis.
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-Yisrayls behalf.See footnote (
The similarities in witnesses and subject matter are such that Ben-Yisrayl has not
shown his trial counsels performance fell below reasonable standards.
Ben-Yisrayl also claims that information contained in the affidavits could have been used at trial to bolster a residual doubt claim. (Appellants 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.
Today, Ben-Yisrayl seeks to establish that when the General Assembly wrote, The court
is not bound by the jurys recommendation,
See footnote 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.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.