Davis v. State Of Ind.

• Decision Date: 14 December 2010
• Docket Number: No. 49A02-1003-CR-332,49A02-1003-CR-332
• Parties: CHIJOIKE BOMANI BEN-YISRAYL f/k/a GREAGREE DAVIS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

CHIJOIKE BOMANI BEN-YISRAYL f/k/a GREAGREE DAVIS, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 49A02-1003-CR-332

COURT OF APPEALS OF INDIANA

FILED: December 14, 2010

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

LISA M. JOHNSON

Brownsburg, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Sheila A. Carlisle, Judge

Cause No. 49G03-8404-CF-5165

MEMORANDUM DECISION-NOT FOR PUBLICATION

BROWN, Judge Chijoike Bomani Ben-Yisrayl, formerly known as Greagree Davis, appeals his sentence for murder. Ben-Yisrayl raises three issues, which we revise and restate as:

I. Whether the trial court sentenced Ben-Yisrayl in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), reh'g denied;

II. Whether the trial court abused its discretion in sentencing Ben-Yisrayl; and

III. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

The relevant facts as discussed in Ben-Yisrayl's direct appeal follow:

[Ben-Yisrayl] was acquainted with [Debra Weaver's] former roommate and had visited [Weaver's] residence on many occasions during the summer of 1983. [Ben-Yisrayl] told the roommate several times of his sexual interest in [Weaver]. About 7:00 p.m. on April 2, 1984, [Ben-Yisrayl] knocked on the door of [Weaver's] neighbors, asking them whether [Weaver] lived there, and was told that... she did not. [Ben-Yisrayl] then left. Sometime after 9:00 p.m., [Weaver] arrived home and telephoned her brother. She told him that someone had broken into her residence through a back window and had removed all the light bulbs. [Weaver] believed that the intruder might still be present. Her brother told her to leave immediately, and assumed that she would come to his residence. When she failed to arrive as he expected, he reported the incident to the police. The responding officer did not find [Weaver] at her residence, but found a broken window. Later investigations discovered the keys to her new car on the porch and the missing light bulbs in a waste paper basket.

On April 4, a police officer found the gagged and substantially disrobed body of [Weaver] at the top of a ramp under a bridge near her residence. An autopsy revealed chipped teeth; broken fingernails; abrasions on the hands, chin, and knees; multiple bruises to the lips and gums; and 113 stab or puncture wounds. The stab wounds were caused by two different knives. [Weaver's] neck evidenced manual strangulation. Seminal fluid was found in her vaginal cavity. The cause of her death was determined to be multiple stab wounds to the chest and abdomen.

[Ben-Yisrayl] told police investigators that he broke the back window of [Weaver's] home, entered it, unscrewed the light bulbs, waited, and hid behind a door when she returned home and made a phone call. When she walked towards the door, he got behind her. With [Weaver's] hands tied in front of her, he took her to nearby railroad tracks, under a bridge, and up a slope. At some point he gagged her. [Ben-Yisrayl] told police that he stabbed her. He described the disposal of the knife, and took police to the creek where he had dropped it while trying to wash it off. Two knives were discovered at this location. One was [Weaver's] pastry knife and the other was a chef's knife from [Weaver's] kitchen knife set. [Ben-Yisrayl] also admitted taking [Weaver's] watch and later selling it.

Serological analysis of blood and seminal fluid obtained from [Weaver] indicated characteristics representing less than one percent of the general population. [Ben-Yisrayl's] blood test results placed him within this category.

Davis v. State, 598 N.E.2d 1041, 1044-1045 (Ind. 1992), reh'g denied, cert. denied, 510 U.S. 948, 114 S. Ct. 392 (1993).

The State charged Ben-Yisrayl with burglary as a class B felony, criminal confinement as a class B felony, rape as a class A felony, criminal deviate conduct as a class A felony, and murder. Id. at 1044. The State sought imposition of the death penalty. Id. The jury found Ben-Yisrayl not guilty of criminal deviate conduct, but guilty on all other counts. Id. The jurors were unable to agree upon a recommendation regarding the death penalty. Id. The trial court, following a further sentencing hearing, ordered the death penalty on the murder conviction, with an alternate sixty-year sentence should the death penalty not be upheld on appeal, and a ninety-year aggregate sentence on the remaining convictions. Id. On direct appeal, the Indiana Supreme Court affirmed Ben-Yisrayl's convictions and sentence. Id.

On February 16, 1994, Ben-Yisrayl filed a petition for post-conviction relief. The post-conviction court partially granted Ben-Yisrayl's petition, vacating the death sentence and remanding to the trial court for a new penalty phase trial and sentencing proceeding, but otherwise denying his petition. Ben-Yisrayl v. State, 738 N.E.2d 253, 257 (Ind. 2000), reh'g denied, cert. denied, 534 U.S. 1164, 122 S. Ct. 1178 (2002). On appeal, the Indiana Supreme Court affirmed the judgment of the post-conviction court. Id.

On remand for sentencing, the trial court granted Ben-Yisrayl's motion to dismiss the death penalty request, concluding that the Indiana death penalty statute was unconstitutional because it permitted a sentence of death without requiring the jury to find beyond a reasonable doubt that the aggravating circumstance or circumstances outweighed any mitigating circumstances. State v. Ben-Yisrayl, 809 N.E.2d 309, 310 (Ind. 2004), reh'g denied, cert. denied, 546 U.S. 1020, 126 S. Ct. 659 (2005). On appeal, the Indiana Supreme Court reversed the trial court's order and remanded for reinstatement of the State's death penalty request and for penalty phase proceedings as previously ordered by the Court. Id. at 311.

On January 16, 2008, the State moved to dismiss its request for imposition of the death penalty based upon the inadvertent destruction of physical evidence, which the trial court granted. Ben-Yisrayl v. State, 908 N.E.2d 1223, 1226 (Ind. Ct. App. 2009), trans. denied. On January 22, 2008, the trial court issued an amended abstract of judgment reflecting the dismissal of the death penalty but otherwise adopting the 150-year sentence originally imposed by the trial court. Id. On February 12, 2008, Ben-Yisrayl filed a motion to correct error, which the trial court denied. Id.

On appeal, this court held that the original trial court exceeded its statutory authority in imposing Ben-Yisrayl's alternative sixty-year consecutive sentence for murder. Id. at 1230. This court remanded to the trial court with instructions to conduct a sentencing hearing and resentence Ben-Yisrayl for his murder conviction. Id. The court also held that Ben-Yisrayl was subject to the "presumptive" statutory scheme in effect at the time of his crimes. Id. at 1231. The court held: "Accordingly, under the rule in Blakely, the trial court upon remand cannot enhance his sentence based on additional facts, unless those facts are either (1) a prior conviction; (2) facts found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant; or (4) facts found by the sentencing judge after the defendant had waived Apprendi rights and consented to judicial factfinding." Id. The court also ordered the trial court to conduct a full sentencing hearing for Ben-Yisrayl's murder conviction. Id.

On remand, the trial court held a sentencing hearing on February 16, 2010, and Ben-Yisrayl presented multiple character witnesses. At the end of the hearing, the court and the parties agreed to have the parties submit arguments in writing. Ben-Yisrayl submitted a two-page Sentencing Memorandum, which argued that he had made progress, had responded positively to rehabilitation, had a minimal criminal history, and had family members and members of the community that spoke on his behalf. On February 26, 2010, the court continued the sentencing hearing. The court asked the parties if they had additional argument or evidence, and Ben-Yisrayl's counsel stated: "No thank you, Your Honor. I said what I came to say in my written memorandum." Transcript at 108.

The court recognized that it was constrained by Blakely. The court then identified Ben-Yisrayl's criminal history and the fact that he was on probation at the time of the offense as significant aggravating circumstances. Regarding Ben-Yisrayl's criminal history, the court stated:

[O]n November 1, [19]74, as a juvenile, you were found to have drawn a deadly weapon on another person. Specifically, that you drew a knife on another individual at school. You were 12 years old by my calculation at that time.

Also as part of this aggravating circumstance of a prior criminal history, on October 3, 1978, again as a juvenile, unlawful deviate conduct. You and another individual forced an 11 year-old female to commit sodomy and then placed your penis in her vagina. My calculation was that you were 16 years old at that time.

And then on July 16th of 1983, you committed the burglary class B felony that you've already alluded to. You broke and entered the dwelling at 3801 North Ridgeview Drive, and you did so with intent to exert unauthorized control over property.

* * * *

So at age 22 you had these three prior convictions that comprise the aggravating circumstance of a prior criminal history. The Court, in reviewing those and considering those, especially in light of the charge that you're being sentenced on, finds that these prior convictions served as your foundation for your preparation for the conviction in this case.

And I say that because at age 12 you pulled a knife on someone, and when

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