Attorneys for Appellant Attorneys for Appellee
Steve Carter Russell A. Johnson
Attorney General of Indiana Johnson Gray & Macabee Franklin, Indiana
Stephen R. Creason
Deputy Attorney General Ann M. Sutton
Indianapolis, Indiana Marion County Public Defender Agency Indianapolis, Indiana
Interlocutory Appeal from the Marion Superior Court, No. CR84-076E
The Honorable Grant W. Hawkins, Judge
May 25, 2004
The defendant, Chijoike Bomani Ben-Yisrayl, formerly known as Greagree Davis, was convicted of
murder, burglary, and rape in 1984 following a jury trial. His penalty
phase jury was unable to reach a unanimous recommendation, and the trial judge
thereafter sentenced the defendant to death pursuant to then-existing procedure. Ind. Code
35-50-2-9(f) (West 1984). We affirmed. Davis v. State, 598 N.E.2d 1041
(Ind. 1992). In subsequent post-conviction proceedings, the post-conviction court vacated the death
sentence due to ineffective assistance of penalty-phase counsel and remanded for a new
penalty phase trial. We affirmed. Ben-Yisrayl v. State, 738 N.E.2d 253
(Ind. 2000). On remand, the trial court granted the defendant's motion to
dismiss the death penalty request, concluding that the Indiana death penalty statute is
unconstitutional because it permits a sentence of death without requiring the jury to
find beyond a reasonable doubt that the aggravating circumstance or circumstances outweigh any
mitigating circumstances, which the trial court believed violated Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
The trial court certified its order for interlocutory appeal. Because the Court
of Appeals has jurisdiction over interlocutory appeals, Ind. App. R. 14(B)(1), we granted
the State's petition to transfer before consideration by the Court of Appeals, App.
R. 56(A), and we accepted appellate jurisdiction over the interlocutory appeal. App.
R. 14(B)(1). The trial court's order dismissing the State's death penalty request
and holding the statute unconstitutional was issued on the same day that the
same trial court similarly ruled in the case of Barker v. State, which
we also decide today. ___ N.E.2d ___ (Ind. 2004).
The State's appeal in the present case presents arguments that are identical to
those it made in Barker.
See footnote The State contends that the trial court
erred in concluding that, because it does not require a penalty-phase jury to
find that mitigating circumstances outweigh aggravating ci
rcumstances beyond a reasonable doubt, the Indiana
death penalty statute was unconstitutional. The State's appeal argues that weighing is
not a "fact" that requires proof beyond reasonable doubt under Apprendi and Ring.
It also urges that the Ring requirement for a jury to find
beyond a reasonable doubt any fact that makes a murder defendant eligible for
the death penalty applies only to aggravating circumstances under the Indiana scheme because
it is these circumstances, not the "outweighing" factor, that determines a murder defendant's
eligibility to be considered for the death sentence.
The argument section of Ben-Yisrayl's appellate brief consists of his declaration that he
"adopts and incorporates the argument advanced by the appellee" in Barker, except that
Ben-Yisrayl additionally emphasizes that in his case, unlike that of Barker, the penalty
phase jury could not reach a decision. Br. of Appellee at 4.
As we discussed in our decision today in Barker, this Court recently held that "the Indiana Death Penalty Statute does not violate the Sixth Amendment as interpreted by Apprendi and Ring." Ritchie v. State, ___ N.E.2d ___, ___ (Ind. 2004) (slip op. at 10). Because the weighing factor need not be found beyond a reasonable doubt, the omission of such a requirement in the Indiana death penalty statute, Ind. Code § 35-50-2-9(l), does not render the statute unconstitutional. Ritchie, ___ N.E.2d at ___ (slip op. at 11). The trial court erred in its conclusion to the contrary.
For the reasons set forth in Barker, we reject the alternative arguments urging
affirmance of the dismissal of the death penalty request on other grounds. As
to the fact that Barker's penalty phase jury recommended death, but Ben-Yisrayl's jury
was unable to reach a sentencing decision, Ben-Yisrayl does not present any basis
requiring a result different from Barker.
Having presented only the arguments advanced in
Barker, Ben-Yisrayl's appeal is governed by
our opinion in Barker.
We reverse the trial court's order of June 27, 2003, finding that Indiana
Code § 35-50-2-9 is unconstitutional and dismissing the State's request for the death
penalty. We remand for reinstatement of the State's death penalty request and
for penalty phase proceedings as previously ordered by this Court.
Shepard, C.J., and Sullivan and Boehm, JJ., concur. Rucker, J., concurs in result with separate opinion.
I concur in result for the reasons expressed in Barker v. State, No.
49S00-0308-DP-392, ___ N.E.2d ___ (Ind. 2004) (Rucker, J., concurring in result).