ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Joanna Green Arthur Thaddeus Perry
Deputy Public Defender Deputy Attorney General
Marie F. Donnelly
Special Assistant to the
State Public Defender
SUPREME COURT OF INDIANA
BILL J. BENEFIEL, ) ) Appellant (Petitioner Below ), ) ) v. ) Cause No. 84S00-9207-PD-590 ) STATE OF INDIANA, ) ) Appellee (Respondent Below ). )Cause No. 84D01-8705-CF-34
APPEAL FROM THE VIGO SUPERIOR COURT The Honorable Frank M. Nardi, Special Judge
SHEPARD, Chief Justice.
A jury found Bill Benefiel guilty of criminal confinement, rape, criminal deviate conduct, and murder. The trial court
sentenced Benefiel to death. We affirmed the convictions and
sentence on direct appeal.
Benefiel v. State, 578 N.E.2d 338 (Ind.
1991), cert. denied, 504 U.S. 987 (1992)
Benefiel filed a
petition for post conviction relief, which was denied. He now
appeals that denial.
On October 10, 1986, at about 7:30 p.m., seventeen year-old Alicia Elmore walked two blocks away from her home to run an errand for her mother and brother. As she returned, a man wearing a mask and carrying a gun grabbed her, pushed her into a garage, stripped her, covered her head, and bound her with her own clothes and electrical wire. He put her in his van, and took her to a house, where he took photographs of her and then raped her. He chained her neck and handcuffed her wrists to the bed; he tied her ankles together with rope. He gagged her and put glue in her eyes. He raped her multiple times. When she tried to escape, he cut her back and cut off a fingernail and part of her hair; he said they were for his scrapbook with samples from his other victims. Later, he cut her neck and chest, put his gun in her vagina, and forced
her to have anal intercourse.
He held Alicia captive for four months, raping her daily at
gunpoint. She lost count after sixty-four rapes. For the first
few months, Benefiel kept her eyelids glued together and pried them
open only when he wanted to see her eyes. At those times, he wore
a mask so she could not see his face. Alicia could only go to the
bathroom or bathe when Benefiel allowed her. He fed her a baked
potato and a glass of water once a day.
Two months later, when Alicia was bleeding vaginally, Benefiel
took off his mask and pried her eyes open. He took her to a
distant hospital where they would not be recognized. He did not
give her a chance to tell the doctors that she was a captive. When
they returned, he moved her to another house, where he again
chained her to the bed. Her eyes could now open, and she could see
A month and a half later, Alicia heard someone else in the
house. She then saw Delores Wells, naked, gagged, with her wrists
and ankles handcuffed. Delores' eyes were taped shut. Benefiel
beat Delores in front of Alicia with his fists and an electrical
cord. Alicia saw the injuries to Delores: welts on her arms and
legs and black bruises on her face. On another occasion, Benefiel
cut off all of Delores' hair and cut into her finger.
After another few days had passed, the police came to
Benefiel's house to search for Alicia. Benefiel hid her in a crawl
space in the ceiling, where the police eventually found her. A
search of the woods surrounding Terre Haute also revealed Delores'
grave site and her body. The police found in Benefiel's houses and
van: a mask, a post-hole digger, a rake, a shovel, a knife, .22
caliber rifle shells, rope, and Delores' eyelash, eyebrow, and head
hairs stuck to some duct tape.
Conviction Rule 1(1)(b). Instead, our post-conviction rules create
a narrow remedy for subsequent collateral challenges to
convictions. Coleman, 703 N.E.2d at 1027. With the exception of
ineffective assistance of counsel, which may be raised either on
direct appeal or in post-conviction proceedings, Woods v. State,
701 N.E.2d 1208, 1220 (Ind. 1998), "[i]f an issue was known and
available but not raised on appeal, it is waived." Rouster v.
State, 705 N.E.2d 999, 1003 (Ind. 1999).
Some of the claims Benefiel presents in this appeal are
unavailable or res judicata. We address the merits of those that
uncharged rapes that were admitted into evidence at
4. Whether counsel were ineffective for the cumulative effect of not objecting to:
a. the trial court's definition of "mitigating" evidence,
b. the State's comments about the defense's only expert,
c. the admission of evidence of two prior uncharged rapes, and
d. the comments of the prosecutor and the trial judge in combination with the final instructions that Benefiel alleges depreciated the jury's role in sentencing.
Moreover, counsel's performance is presumed effective.
Douglas, 663 N.E.2d at 1154. A petitioner "must offer strong and
convincing evidence to overcome the presumption that counsel
prepared and executed an effective defense." Burris v. State, 558
N.E.2d 1067, 1072 (Ind. 1990), cert. denied, 516 U.S. 922 (1995).
A petitioner appealing the denial of post-conviction relief
faces a rigorous standard of review. Here, the post-conviction
court found that Benefiel's lawyers had "extensive backgrounds as
criminal defense attorneys" and undertook "extensive efforts to
prepare themselves for this case." (P-C.R. at 369.) Judge Nardi
said they presented an "aggressive and extensive defense of the
petitioner in the face of overwhelming evidence." (Id.) The
challenger of the denial must demonstrate that the evidence, taken
as a whole, is without conflict and that it "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
other words, Benefiel must prove that the evidence, viewed in its
entirety, leads unerringly and unmistakably to the conclusion that
his counsel were ineffective.
A. Insanity and Mitigation. Benefiel argues that his trial counsel were ineffective for their limited presentation of Benefiel's mental illness and background of abuse and neglect. (Petitioner-Appellant's Br. at 51-52.) Specifically, he argues that counsel improperly focused almost exclusively on a weak insanity defense during the guilt phase of the trial and failed to
introduce enough evidence of mental illness and abuse to serve as
mitigation at the penalty phase. This bears resemblance to a claim
we rejected in Matheney v. State, 688 N.E.2d 883, 898 (Ind. 1997),
cert. denied, 119 S. Ct. 1046 (1999).
Matheney argued on post-conviction that his trial lawyers
chose badly in arguing insanity as a defense. We concluded that
this claim failed on the deficient performance prong of the
While present counsel bemoan trial counsel['s] decision to pursue the insanity defense, they provide no evidence of what alternative strategy trial counsel should have employed in its stead. Indeed, there is much to indicate that employing this defense was the best alternative available. There was no available defense that would have cast doubt on the fact that he intentionally killed [Delores Wells], and by employing the insanity defense, [Benefiel's] attorneys were able to introduce evidence that they otherwise would not have been able to submit. We conclude counsel did not perform at a level below professional norms.
Id. (citation omitted).
The piece of this argument aimed at the lawyers' performance during the penalty phase fails on the prejudice prong. He claims that his trial counsel should have offered the testimony of court- appointed experts who could attest to Benefiel's "severe personality disorder" and his genetic predisposition to "schizotypal personality disorder," (Petitioner-Appellant's Br. at 59), the testimony of the mental health professionals who prepared records concerning Benefiel's mental state when he was a teenager, (id. at 63), and the records of his adoption by Helen Benefiel,
The court-appointed experts did testify during the guilt phase
that Benefiel suffered from schizotypal personality disorder, (T.R.
at 3006-07, 3014-16), and from a mental disease or defect, (T.R. at
3057, 3084-85, 3097-98). Because the guilt phase evidence was
incorporated into the penalty phase, (T.R. at 3350-51; see also
T.R. at 3424), this evidence was available for the jury to consider
when it determined its recommended punishment. The evidence that
post-conviction counsel says could and should have been submitted
during the penalty phase carried much the same thrust. While
hearing the same testimony again at the penalty phase might have
reinforced the idea that the mental disease discussed during the
guilt phase could have mitigating weight, we cannot say that the
failure to reintroduce the testimony created a reasonable
probability that the jury would have recommended against death.
See Matheney, 688 N.E.2d at 899.
The jury did hear evidence of the mental disease or defect
mitigator. Benefiel's counsel argued the mitigator forcefully in
his penalty phase closing. (See, e.g., T.R. at 3409, 3411.)
Furthermore, the evidence presented by the State was overwhelming;
the aggravator weighed very heavily in favor of the death penalty.
Benefiel suffered no prejudice.
As to the testimony of the mental health professionals, the
records they prepared were introduced into evidence at the guilt
phase, (T.R. at 2566-74), and thus the information contained
therein was also available to the jury when it recommended death.
Moreover, Benefiel's trial counsel asked one of the court-appointed
experts to describe the contents of the reports. (T.R. at 3063-
64.) While the live testimony of the health professionals may have
interested the jurors more than the expert's description of the
reports or the written reports themselves, again "we cannot say
that the failure to elicit such testimony . . . creates 'a
reasonable probability that the result of the proceeding would have
been different.'" Matheney, 688 N.E.2d at 899 (quoting Cook, 675
N.E.2d at 692).
Finally, with respect to Benefiel's claim that counsel should
have sought his adoption records, Benefiel's biological mother
testified under subpoena at the penalty phase about the adoption.
(T.R. at 3366-87.) Her testimony was exceptionally probative of
Benefiel's abandonment and abuse. Again, Benefiel's contention
that counsel's failure to dig up adoption reports written in 1963
fails the Strickland prejudice prong, at least. (P-C.R. at 1096-
B. Mitigation Instruction. Benefiel also claims that trial counsel were deficient for failing to ensure that the jury was
properly instructed about the role of mitigating circumstances.See footnote 3 (Petitioner-Appellant's Br. at 64.) The main thrust of this point is that counsel should have objected to the portion of Death Penalty Instruction 2 that states, "Mitigating is defined as a fact or circumstance which makes an offense appear less severe." (T.R. at 385; Petitioner-Appellant's Br. at 35-36, 64-65.)See footnote 4 Benefiel claims that the instruction "impermissibly limited the jury's consideration of mitigating circumstances to [those] surrounding the 'offense,'" thereby precluding consideration of his "long-
standing mental illness and bizarre childhood." (Petitioner-
Appellant's Br. at 39.)
Jury instruction lies largely within the discretion of the
trial court. Coleman, 703 N.E.2d at 1032; see also Edgecomb v.
State, 673 N.E.2d 1185, 1196 (Ind. 1996). On appeal, such issues
are reviewed for abuse of discretion. "To constitute an abuse of
discretion, the instruction given must be erroneous, and the
instructions taken as a whole must misstate the law or otherwise
mislead the jury." Coleman, 703 N.E.2d at 1032 (citing Reaves v.
State, 586 N.E.2d 847 (Ind. 1992)).
We are satisfied that a lawyer performing reasonably well
could decide the instructions as a whole gave the jury an adequate
picture of its role and take a pass on objecting to this particular
instruction. Death Penalty Instruction 8 explicitly informs the
jury that it is to examine mitigating factors beyond those
surrounding the offense. The instruction states in part, "In
deciding upon your recommendation you must focus your attention and
consideration upon the defendant. The crimes he committed and who
he committed them against has been decided." (T.R. 391, 3428
Instruction 1, moreover, informed the jury that it could consider extreme mental or emotional disturbance and mental disease or defect that substantially impairs the ability to understand
culpability or conform conduct to law. (T.R. at 384, 3424.) The
jury, therefore, was aware that it could consider Benefiel's mental
condition, insofar as it was extreme or it substantially impaired
his conduct or appreciation of culpability. Instruction 1 further
instructs the jury to weigh any other circumstances appropriate for
consideration. (Id.) Instruction 9 reiterates that the jury may
contemplate other mitigators, "even . . . if not specifically
listed in the statute." (T.R. at 392, 3429.) Benefiel's
background and his mental condition, even if they did not rise to
the extreme or substantially impair his mind or action, are other
factors appropriate for the jury's consideration. While the trial
court did not explicitly enumerate these factors, we think that the
instructions, when read together, led the jury to the conclusion
that it must contemplate those very types of factors "in the
interests of fairness and mercy . . . ." (T.R. at 385, 3426.)
C. Identification Procedures. Benefiel argues that, had his trial counsel researched eyewitness identification or employed an expert, they would have learned eyewitness identification is often unreliable. (Petitioner-Appellant's Br. at 72.) He claims that counsel should have presented this unreliability to the trial court, who would have, in turn, excluded the testimony of two women who claimed that Benefiel had kidnaped and raped them six and eight years prior to the crime charged in this case. (Id. at 73.) Benefiel lists several factors indicating unreliability: that the women identified Benefiel from news footage and photographs rather
than from a photo array or lineup, that a significant amount of
time had passed between the crimes against these women and each's
identification of Benefiel as the attacker, that the victims did not get a good look at their attackers, and that Benefiel did not and does not have a distinguishing feature that both women mentioned in their descriptions of their attackers. (Id. at 72.) His claim of error remains, however, that his trial counsel were ineffective for failing to research eyewitness identification or for failing to employ an eyewitness expert. (Id.)
We agree with Judge Nardi that "[t]he fact that some
defendants now employ eyewitness identification experts to assist
in their defense[s] does not mean that error was committed by
defense counsel in this case . . . ." (P-C.R. at 371.) Because
"[w]e need not determine whether counsel's performance was
deficient before examining the prejudice suffered as a result of
the alleged deficiencies," Coleman, 703 N.E.2d at 1028 (citing
Strickland, 466 U.S. at 697), we decide this issue on the prejudice
prong of Strickland.
We decided a similar claim in Coleman, 703 N.E.2d at 1033 (counsel not ineffective for failing to challenge trial court's denial of funds for eyewitness identification expert). Benefiel "has not demonstrated a reasonable probability that had th[is] argument been raised, [it] likely would have succeeded on appeal. We conclude that . . . counsel did not provide ineffective
assistance by taking a pass on this claim." Id. Furthermore,
given the amount of evidence presented by the State against
Benefiel, we are not persuaded that defense counsel's failure to
argue the unreliability of eyewitness testimony rendered his death
sentence unreliable or fundamentally unfair. See id. To the
extent that his counsel's performance was deficient, a better
performance on this score would not have changed the outcome.
D. Cumulative Effect. Finally, Benefiel argues that his
counsel were ineffective for the cumulative effect of failing to
object to four alleged errors: the trial judge's definition of
mitigating evidence, the State's comments about the defense's only
expert, the admission of evidence of two prior uncharged rapes, and
the voir dire comments and guilt phase instructions that allegedly
depreciated the jury's role in sentencing. (Petitioner-Appellant's
Br. at 73-74.) We have already addressed two of these four
contentions. We turn to the two others.
Trial counsel did not object to the State's closing argument on the basis that the prosecutor improperly denigrated the defense expert, and the issue thus did not arise on appeal. On the other hand, there was no error upon which to base such an objection. While the original transcript of the argument indicates that the prosecutor called the expert's qualifications "stolen," (T.R. at 3288), the corrected record now makes it apparent that the prosecutor stated that his qualifications are "sterling," (Supp.P-
C.R. at 3). Moreover, while the prosecutor called the expert a
"hired gun," (T.R. at 3288), and implied that his job was to
manufacture a defense for Benefiel, (id.), such statements simply
do not amount to improper denigration.See footnote
Finally, the jury was not misled to believe that it lacked any "real responsibility regarding Benefiel's sentencing." (Petitioner-Appellant's Br. at 74.) Benefiel claims error because during voir dire the judge told the jury that "it is solely the responsibility of the trial judge to make the final decision," and that he, the judge, was "ultimately responsible" for the sentence. (Petitioner-Appellant's Br. at 84.) "As we have held before, it is not error to accurately describe to the [members of the] jury that, under Indiana's death penalty statute, they give a sentencing recommendation to the judge, who then makes the final decision." Hough v. State, 690 N.E.2d 267, 270 (Ind. 1997), cert. denied, 119 S. Ct. 550 (1998). Benefiel also claims that his counsel should have objected to the guilt phase instruction stating that the jury should deliberate "without being influenced by the apparent severity or lenience of the sentence." (Petitioner-Appellant's Br. at 85; T.R. at 333.) "[W]e have held that informing the [members of the] jury of their function in the bifurcated proceeding is
proper." Harden v. State, 576 N.E.2d 590, 596 (Ind. 1991). The
guilt phase instruction is an accurate statement of how juries
should approach their role in a bifurcated trial; they should
separately determine the defendant's guilt and then recommend the
Benefiel has not demonstrated a "cumulative ineffective
assistance of counsel effect" arising from the combination of these
four trial occurrences, none of which individually amounts to
ineffectiveness. "With reference to cumulative attorney error, as
with any ineffective assistance of counsel claim, defendant must
show both poor performance and prejudice. If trial counsel
committed any errors, they do not amount to prejudice because
defendant has not shown a reasonable possibility that, but for the
alleged errors, the result would have been different." Hough, 690
N.E.3d at 275 (emphasis added).
E. Conclusion. Benefiel has not succeeded in demonstrating
on appeal that the evidence leads solely to a conclusion that Judge
Nardi was wrong when he found that Benefiel's lawyers provided an
aggressive and extensive defense consistent with the Sixth
Benefiel argues that his right to be present at trial was
violated because the procedures used to determine his competency to
waive that right were inadequate, and because his waiver of that
right was not knowing and voluntary. (Petitioner-Appellant's Br.
at 74-75.) He terms these alleged errors "fundamental." (Id. at
"A court is required to hold a hearing to determine the defendant's competency to stand trial only when it is confronted with evidence creating a reasonable doubt about the defendant's competency. Whether reasonable grounds exist to order an evaluation of competency is a decision assigned to the sound discretion of the trial court, reviewable only for an abuse of discretion." Haviland v. State, 677 N.E.2d 509, 516 (Ind. 1997) (citations omitted). In Haviland, the trial court held prior competency hearings before it again heard a defense expert testify that the defendant was incompetent. We held that the court did not abuse its discretion when it found that the defendant remained competent and that another competency hearing was unnecessary. Id. In this case, in highly similar circumstances, Judge Eldred held a hearing in chambers and reached the same conclusion. (T.R. at 2551-52 ("Really, based on what I have seen of [Benefiel] today and throughout this trial, I see no real difference in his
Benefiel obviously knew of his right to be present inasmuch as
he had spent the trial in the courtroom. Judge Eldred reminded him
of this fact, saying, "you know that you have a right to be in the
courtroom during this trial, if you want to be." (T.R. at 2550.)
Benefiel's response, "I can't," (id.), does little to indicate that
he did not know of and voluntarily waive his right to be at the
Although Benefiel summarily terms the alleged error in these
claims "fundamental," (Petitioner-Appellant's Br. at 83), he "makes
no effort to demonstrate fundamental error. We find such claims,
even if available under the fundamental error doctrine, waived for
failure to comply with Ind.Appellate Rule 8.3(A)(7)." Brown v.
State, 698 N.E.2d 1132, 1145 n.16 (Ind. 1998), cert. denied, 119 S.
Ct. 1367 (1999).
Benefiel contends that this instruction and similar statements by
the court during voir dire "obviated the jury's responsibility in
returning its recommendation elsewhere." (Petitioner-Appellant's
Br. at 88.) This claim was available on direct appeal and is
This claim was not raised on direct appeal, when it was
plainly available. It is waived.
Benefiel, 578 N.E.2d at 346. The Court was unanimous on this
point, although there were differing views on why the trial court
had properly denied the motion to exclude.See footnote
The ruling on direct
appeal is res judicata.
A motion to correct error is designed to provide post-judgment relief in a few very limited situations. See Ind.Trial Rule 59(A). Here, Benefiel must prove that he has "[n]ewly discovered material evidence . . . which, with reasonable diligence, could not have been discovered and produced at trial." Id. We agree with Judge
Nardi, the post-conviction judge, that the evidence underlying this
claim was available at the time of Benefiel's post-conviction
hearing. (P-C.R. at 726.) While it is true that, prior to the
motion to correct error, there had not been an execution by lethal
injection in Indiana, (id.), Benefiel did not and does not
challenge the methods employed in the first (and subsequent) lethal
injection proceedings, (see P-C.R. at 702, 1859). Rather, he
challenges the adequacy of the Department's existing ten-page
operational directive on the execution of death sentences. There
is no apparent reason for tardy presentation of this claim, such as
it is.See footnote
"All grounds for relief available to a petitioner under
[Post-Conviction Rule 1] must be raised in his original petition."
P-C.R. 1(8). Because Benefiel did not exercise reasonable
diligence to discover and present this issue in his post-conviction
petition, it is now waived.
Benefiel, 578 N.E.2d at 347-48. In his post-conviction brief,
Benefiel asserts eight claims regarding the constitutionality of
the death penalty statute on its face, without supporting any of
the claims with argument. (Petitioner-Appellant's Br. at 107-09.)
We have already explicitly decided each of the sub-claims, adversely to Benefiel. We reiterate: (1) The felony murder aggravator is not overbroad. Matheney, 688 N.E.2d at 905. (2) When a petitioner has been convicted of intentional murder, use of the felony murder aggravator at the penalty phase does not amount to double jeopardy. Cf. Wisehart v. State, 693 N.E.2d 23 (Ind. 1998), cert. denied, 119 S. Ct. 1338 (1999); see also Matheney, 688 N.E.2d at 904. (3) The word "may" in Ind. Code § 35-50-2-9(c) does not violate the mandate that the sentencer must consider mitigating evidence. Matheney, 688 N.E.2d at 906-07. (4) Indiana Code § 35- 50-2-9(c) does not preclude consideration of non-extreme emotional disturbances or non-substantial impairment. Bivins v. State, 642 N.E.2d 928 (Ind. 1995), cert. denied, 516 U.S. 1077 (1996). (5) The death penalty statute is not constitutionally infirm simply because it does not expressly state a burden of proof for mitigating circumstances. See Matheney, 688 N.E.2d at 902. (6) It is perfectly acceptable to incorporate guilt phase evidence into the penalty phase. Woods, 547 N.E.2d at 794. (7) Written findings of specific mitigating factors are not required of the jury. Wrinkles v. State, 690 N.E.2d 1156 (Ind. 1997), cert. denied, 119 S. Ct. 148 (1998). And finally, (8) the Indiana death penalty
statute does provide a meaningful appellate review of a death
sentence. Hough, 690 N.E.2d at 277.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Benefiel's deficient performance argument consists solely of a reference
to another section of his brief. (Petitioner-Appellant's Br. at 65 ("In
Argument I, infra, which is incorporated herein, Benefiel has already
addressed the inadequacies in the instructions on mitigation.").) As
Professor Stroud has said: "It is not sufficient to merely refer to a prior
argument in the brief." 4A Kenneth M. Stroud, Indiana Practice 96 (2d ed.
1990), citing Williams v. State, 408 N.E.2d 123, 125 (Ind. Ct. App. 1980); see
also App.R. 8.3(A)(7). Benefiel does not claim that trial counsel's failure
to object to the mitigation instruction caused him prejudice or rendered his
conviction unfair or unreliable. (See Petitioner-Appellant's Br. at 64-69.)
While we discuss this issue on the merits, despite the woeful inadequacy of its argument, we will not discuss Benefiel's other related claim that "[d]uring closing argument, trial counsel's only argument concerning mitigation consisted of reiterating the trial court's charge," (Petitioner- Appellant's Br. at 65), because his post-conviction counsel failed to mention, let alone demonstrate, any of the parts of the ineffective assistance of counsel framework. We simply note that the claim is unsupported by the record. (See T.R. at 3409, 3411, where counsel did explain and argue mitigation to the jury at the penalty phase.)
Mitigating is defined as a fact or circumstance which makes an
offense appear less severe. So, even though a mitigating
circumstance does not constitute a justification of or excuse for
the offenses in question, it should, in the interests of fairness
and mercy, be considered as reducing Bill J. Benefiel's moral
(T.R. at 385.)
Converted from WP6.1 by the Access Indiana Information Network