Ben-Yisrayl v. State

• Decision Date: 25 May 2000
• Docket Number: No. 45S00-9708-PD-460.,45S00-9708-PD-460.
• Citation: 729 N.E.2d 102
• Parties: Obadyah BEN-YISRAYL, f/k/a Christopher Peterson, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

729 N.E.2d 102

Obadyah BEN-YISRAYL, f/k/a Christopher Peterson, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 45S00-9708-PD-460.

Supreme Court of Indiana.

May 25, 2000.

Susan K. Carpenter, Public Defender of Indiana, Steven H. Schutte, Emily Mills Hawk, Deputy Public Defenders, Indianapolis, Indiana, Attorneys for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. 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, 118 S.Ct. 858, 139 L.Ed.2d 757 (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

V. 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, 115 S.Ct. 507, 130 L.Ed.2d 415 (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, 118 S.Ct. 1528, 140 L.Ed.2d 678 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 509 (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.

I. 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.

II. 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...