ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Steven H. Schutte Arthur Thaddeus Perry
Deputy Public Defender Deputy Attorney General
Emily Mills Hawk
Deputy Public Defender
SUPREME COURT OF INDIANA
OBADYAH BEN-YISRAYL, F/K/A ) CHRISTOPHER PETERSON, ) ) Appellant (Petitioner Below ), ) ) v. ) No. 64S00-9808-PD-429 ) STATE OF INDIANA, ) ) Appellee (Respondent Below ). )
August 28, 2001
Formerly known as Christopher D. Peterson, Ben-Yisrayl was sentenced to death after being
convicted of two counts of murder and two counts of felony murder for
killing Harchand Dhaliwal and Marie Meitzler in Portage, Indiana. We affirmed his
convictions and sentence on direct appeal. Ben-Yisrayl v. State, 690 N.E.2d 1141
(Ind. 1997), cert. denied, 525 U.S. 1108 (1999). In this appeal from
the denial of his petition for post-conviction relief, he raises several issues, which
we restate as:
Whether the post-conviction court properly excluded polygraph evidence;
Whether his appellate lawyer was ineffective;
Whether his trial counsel rendered ineffective assistance;
Whether the post-conviction court properly admitted evidence of George and Ilija Balovskis murders
and the shotgun found in Ben-Yisrayls closet;
Whether certain procedural rulings of the post-conviction court were erroneous; and
Whether the trial transcript was so inadequate as to deny Ben-Yisrayl due process
or meaningful appellate and collateral review.
We rejected an argument similar to Ben-Yisrayls in
Wallace v. State, 553 N.E.2d
456 (Ind. 1990), cert. denied, 500 U.S. 948 (1991). The debate over
admissibility of polygraph evidence has continued in intervening years. The U.S. Supreme
Court recently revisited the reliability of polygraph testing in a case challenging the
constitutionality of a military rule making polygraph evidence inadmissible per se in court-martial
proceedings. United States v. Scheffer, 523 U.S. 303, 305 (1998). The
Court concluded: [T]here is simply no consensus that polygraph evidence is reliable.
To this day, the scientific community remains extremely polarized about the reliability
of polygraph techniques. Id. at 309 (citations omitted). A per se
exclusionary rule therefore did not infringe upon the accuseds federal constitutional right to
present a defense. Id. at 317.
In focusing on the argument that polygraph evidence should be admitted because it is reliable, Ben-Yisrayl overlooks another formidable evidentiary hurdle. He offers his polygraph results to prove that he spoke truly when telling the examiner, No, he had not killed any of these people. (P-C.R. at 580.) But out-of-court statements offered to prove the truth of the assertion are inadmissible hearsay. Indiana Rule of Evidence 801(c). Even well-respected proponents of polygraph evidence have conceded that the type of evidence Ben-Yisrayl offers arguably violates the spirit of the hearsay rule because the foremost rationale for the rule is safeguarding the right to cross-examine adverse witnesses. Edward J. Imwinkelried & James R. McCall, Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations, 32 Wake Forest L. Rev. 1045, 1064 (1997).
Ben-Yisrayl cannot overcome the prohibition against hearsay evidence by offering the polygraph to
bolster his credibility rather than for the truth of the matter asserted, because
he has avoided impeachment throughout this case by declining to testify. The
post-conviction court did not err in refusing to admit the polygraph operators view
about the veracity of such out-of-court statements.
In his direct appeal, Ben-Yisrayl argued that the State had not offered any
evidence of a statutory aggravating circumstance during the penalty phase, and thus had
failed to prove the existence of an aggravator beyond a reasonable doubt.
Ind. Code Ann. § 35-50-2-9(a)(West 1993),
Ben-Yisrayl, 690 N.E.2d at 1151.
We held that the Indiana Code did not require that a prosecutor formally
move to incorporate the guilt phase evidence at the penalty phase in order
to satisfy the States burden of proof during the penalty phase and that
the evidence was thus before the jury for consideration in recommending for or
against death. Ben-Yisrayl, 690 N.E.2d at 1152.
Ben-Yisrayl now raises the issue of the States reliance on guilt phase evidence
during the sentencing phase as a federal constitutional claim.
See footnote He asserts that
his appellate counsel was ineffective for failing to argue on direct appeal that
the penalty phase of Ben-Yisrayls trial violated several of his federal constitutional rights.See footnote
(Appellants Br. at 25, citing T.R. at 1477).
Each of these contentions flows from his assertion that the State made no request that the guilt-trial evidence be incorporated into the penalty-trial , (Appellants Br. at 25), and that his lawyer was deficient for not arguing the point.
We held during Ben-Yisrayls direct appeal that in the penalty phase of trial
the jury may consider all the evidence introduced at the trial stage of
the proceedingsSee footnote whether the State requested incorporation of the guilt phase evidence into
the penalty phase or not.See footnote That being the state of Indiana
law, his lawyer was not deficient by taking a pass on federal arguments
that rest on our law being otherwise.
B. Exclusion of Jurors. Ben-Yisrayl claims that the post-conviction court violated his
federal and state constitutional rights when it refused to admit affidavits by two
prospective jurors who were dismissed because they said they could not vote to
impose the death penalty under any circumstances. (Appellants Br. at 47-54; T.R.
at 1374, 1394-95.) The affidavits stated that these individuals opposed the death
penalty as a matter of conscience. (P-C.R. at 1713, 1716.)
A venireman who express[es] conscientious objections to capital punishment may be excluded for
cause if his views would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.
Wainwright v. Witt, 469 U.S. 412, 416, 424 (1985)(citation omitted). See also
Fleenor v. State, 514 N.E.2d 80 (Ind. 1987), cert. denied, 488 U.S. 872
(1988) (exclusion of jurors who cannot conscientiously consider the death penalty does not
deny defendant a fair trial).
Ben-Yisrayl argues that such exclusion is a form of religious discrimination, and he
invokes case law dealing with racially discriminatory juror strikes. (Appellants Br. at
48-50.) We have held, however, that precedent barring the racially discriminatory use
of peremptory challenges does not preclude the exclusion of prospective jurors who would
not recommend the death penalty under any circumstances. Lambert v. State, 643
N.E.2d 349, 352 (Ind. 1994).
Ben-Yisrayl also claims that Ind. Code Ann. § 35-37-1-5(a)(3)(West 1991)
See footnote violates the equal
privileges clause of the Indiana Constitution.See footnote (Appellants Br. at 51.) To
pass constitutional muster, differential statutory treatment must be reasonably related to inherent
characteristics that distinguish the unequally treated class.
Collins v. Day, 644 N.E.2d
72, 80 (Ind. 1994). Here, it is plainly reasonable to exclude prospective
jurors in capital cases who are so inherently opposed to the death penalty
that they could not recommend a death sentence regardless of the facts or
the law. A second prong of the constitutional requirement is that the
differential treatment must apply equally to all those similarly situated. Id.
This statute treats all jurors who express such convictions, for whatever reason, the
A lawyer who did not raise these various challenges to the prevailing rule
of a death-qualified jury would be well within the standard of performance required
by the Sixth Amendment. The post-conviction court appropriately rejected Ben-Yisrayls contentions about
the effectiveness of his trial counsel.
B. The Shotgun. Ben-Yisrayl next argues that the shotgun found in his
mothers apartment was illegally seized and therefore improperly admitted into evidence at trial
because there was no probable cause to believe that it was contraband.
(Appellants Br. at 44-46.) He bases this claim on an assertion that
the shotgun, which was twenty-six and a half inches, with a sixteen or
sixteen and a half inch barrel, was not sawed-off. (Appellants Br. at
46); See Ben-Yisrayl, 729 N.E.2d at 110.
We have visited this shotgun issue before. In Ben-Yisrayl v. State, 729
N.E.2d at 109-10, Ben-Yisrayl claimed, as he does here, that the shotgun was
not a sawed-off shotgun,
See footnote as defined by Ind. Code § 35-47-1-10.See footnote We
rejected this argument while affirming that the statute defining a sawed-off shotgun should
be interpreted disjunctively.
Id. at 110. These two claims are barred.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the U.S. Supreme Court
held, [T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.
We have previously recognized that this holding applies to evidence impeaching the
credibility of a States witness. See Williams v. State, 714 N.E.2d 644
(Ind. 1999), cert. denied, 528 U.S. 1170 (2000)(citing United States v. Bagley, 473
U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972)).
The evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Bagley, 473 U.S. at 682.
Ben-Yisrayl sought the additional evidence concerning the relationship between Maxwell and Becker to show that Maxwell was a paid confidential informant in Ben-Yisrayls case and to discredit Maxwells testimony. (See Appellants Br. at 56). After examining the content of Maxwells testimony and the effectiveness of defense counsels cross-examinations, the post-conviction court found that the evidence that Ben-Yisrayl sought was not material. See footnote The court said,
It is clear that counsel conducted a very thorough cross-examination of Maxwell, got him to admit some inconsistencies between his testimony and his previous statements, and even got Maxwell to suggest the Petitioners alleged statement about the shotgun might not be an admission that Petitioner had done some damage with the shot gun . . . It is hard to see how information as to Maxwells alleged cooperation with law enforcement would have added much to the effect of the cross-examination . . . . There is simply no reasonable probability that the allegedly impeaching information would have led to a different result.
(P-C.R. at 1077-78.)
Ben-Yisrayl has failed to show that the evidence leads unerringly and unmistakably to an opposite conclusion. Consequently, we will not disturb the post-conviction courts ruling.
Ben-Yisrayl next contends that the post-conviction court erred when it denied his request for transcripts from the jury selection in his earlier trial on these charges, which ended in a mistrial. (Appellants Br. at 56.) He asserts this information is necessary and relevant to discover whether the misconduct in jury selection presaged the alleged misconduct in closing argument. (Appellants Br. at 57.) We disagree.
The mistrial occurred with the first attempt to impanel a jury for Ben-Yisrayls
trial based on an improper comment by the prosecutor. (P-C.R. at 1214-16.)
Ben-Yisrayl moved for a second mistrial during closing argument claiming that the
prosecutor committed reversible error when he challenged defense counsel to explain why a
person would voluntarily confess to a crime that he did not commit.
Ben-Yisrayl, 690 N.E.2d at 1148-49.
The trial court denied this motion and on direct appeal we determined that
the prosecutors statement could not have reasonably been interpreted by the jury as
a suggestion to infer guilt from the defendants silence. Id. at 1149.
We determined that the trial court did not abuse its discretion by
refusing to grant a mistrial because doing so did not subject Ben-Yisrayl to
grave peril. Id.
In his post-conviction proceeding, Ben-Yisrayl sought to establish a pattern of prosecutorial misconduct
by linking the prosecutors improper comments from the mistrial with those made at
closing argument. (P-C.R. at 1214.) The post-conviction court observed that the
statements from the mistrial were made to an entirely different jury and were
dissimilar to those made at closing argument. (P-C.R. at 1213.) The court
characterized Ben-Yisrayls request for the discovery of the transcripts from the jury selection
of the mistrial as a fishing expedition. (P-C.R. at 1218.)
We agree. Any error that occurred in the first proceeding was remedied
when the court declared a mistrial.
Background. The trial record in this case has been problematic from the
start. The court reporter abandoned the project of transcribing her stenographic discs
before the work was halfway done, and another reporter took over the job.
(P-C.R. at 2705-06.) The new reporter encountered difficulty deciphering many passages,
and a record reconstruction specialist from Washington State stepped in to assist.
(Id.) Other scopists and proofreaders also helped, using both the discs and
audiotapes of the trial. (P-C.R. Supp. at 8, 11, 13, 22, 31.)
Because of the transcription problems, we granted Ben-Yisrayl five extensions of time
to file a record for appeal. (P-C.R. at 2684, 2693, 2702, 2710,
On August 25, 1994, when the record had finally been compiled, Ben-Yisrayl filed
a motion asking this Court for a new trial based on its remaining
gaps and errors. Ben-Yisrayl, 690 N.E.2d at 1146. We denied the
motion. Id. Although Ind. Crim. Rule 5 calls for reporting all
oral evidence and testimony given in all cases and hearings, including both questions
and answers, all rulings of the judge in respect to the admission and
rejection of evidence and objections thereto, and any other oral matters occurring during
the hearing in any proceeding, Ind. Appellate Rule 7.2(C)(2) says: Incompleteness or inadequacy
of the record shall not constitute a ground for dismissal of the appeal
or preclude review on the merits. On October 6, 1994, we issued
the following order to supplement the record in accordance with App. R. 7.2(C):
The trial court judge, deputy prosecutor and defense counsel who participated in Appellants trial in this cause shall, to the best of their abilities, reconstruct the actual testimony or arguments not accurately depicted in the trial transcript filed in this Court. To the extent that such testimony cannot be reconstructed, the trial court judge, deputy prosecutor and defense counsel shall report in writing the thrust of the inaccurately transcribed testimony or arguments to the best of their recollection. To the extent that their memories of the actual testimony or arguments are inadequate to reconstruct or outline the testimony or arguments, the trial judge, deputy prosecutor and defense counsel shall report in writing to this Court whether such testimony or arguments raise any material issue or relate to any error raised in Appellants motion to correct errors.
Ben-Yisrayl, 690 N.E.2d at 1146 (quoting Indiana Supreme Court Order dated Oct. 6,
1994). The results were due to us by February 1, 1995.
Id. We stayed briefing in the interim. Id.
The trial judge, deputy prosecutor, and trial defense attorneys met as ordered to
fill in the holes in the record. (P-C.R. at 358-416.) After
nearly four days going over the individual errors and omissions cited by appellate
counsel, the State and defense each briefed the few passages on which they
could not reach consensus. (Id., P-C.R. at 2827, 2840.) The judge
reviewed the briefs and adopted the States version of three passages, found two
issues duplicative of issues previously briefed, and deemed the final passage immaterial.
(P-C.R. Supp. at 36-37.)
Ben-Yisrayls appellate counsel did not report any remaining record deficiencies to us as
our order required. Nonetheless, Ben-Yisrayl argued on appeal that the record of
the pretrial hearing and voir dire was inadequate to permit review of the
change of venue issue. Ben-Yisrayl, 690 N.E.2d at 1147 n.14. Although
the claim was forfeited, we addressed it and determined that the flaws in
the record could not have been material to the issue of the trial
venue. Id. at n.14.
The Post-Conviction Claim. Ben-Yisrayl now points out numerous additional errors and omissions
in the record that appellate counsel failed to identify. He argues that
his appellate counsel was ineffective in waiving review of the overall adequacy of
See footnote He also argues that the flaws in the record denied
him due process and the right to meaningful appellate and collateral review.
(Appellants Br. at 58.) In a nutshell, he asks us to find
that indecipherable portions of the record raise material issues, and therefore to grant
him a new trial without requiring him to make specific allegations of error.
See Ben-Yisrayl, 690 N.E.2d at 1147 n.14.
The State does not deny that a transcript may sometimes be so deficient
as to justify a new trial, but maintains that the post-conviction court correctly
concluded that the record as supplemented in this case is adequate. (Appellees
Br. at 18, P-C.R. at 1083-84.) See Gallagher v. State, 410 N.E.2d
1290, 1292 (Ind. 1980) ([A] new trial is an appropriate remedy where there
is no usable transcript available for appeal.) (emphasis added). See also State
v. Perry, 401 N.W.2d 748, 752 (Wis. 1987) (retrial may be required in
the event that the transcript is so deficient that there cannot be a
meaningful appeal but not all deficiencies in the record nor all inaccuracies require
a new trial.).
We have pored over this record in detail, bearing in mind that a
mans life is at stake.
Two law clerks have each read all five thousand pages of the trial
record. This author has read hundreds of pages of transcript, focusing especially
on pages identified by Ben-Yisrayl and by the law clerks as particularly problematic.
Other members of the Court have seen transcript as part of their
review of the case.
Ben-Yisrayl presented the post-conviction court with a sixty-one page list of errors that
he claims were not addressed on direct appeal. (P-C.R. at 461-523.)
Nearly twenty-two pages cover the change of venue hearing, which (as noted above)
was in fact addressed on direct appeal. Ben-Yisrayl, 690 N.E.2d at 1147
n.14; (P-C.R. at 489-510). A fair number of the errors listed on
the remaining pages are trivial. For example, many (including one entire page
of the list, (P-C.R. at 483)) are simple misspellings, such as ajoining, (P-C.R.
at 484), and imunity, (P-C.R. at 487).
Others, however, are more substantial. We have grouped the latter into three
categories, and address each in turn.
Unrecorded Bench Conferences. Most of the bench conferences during trial were not
recorded. (See, e.g., T.R. at 2093, 2668, 3361, 4322.)
This omission would certainly make it unreasonable to require Ben-Yisrayl to show that
any particular allegation of error was preserved by objection and proper argument, and
we do not do so. It is not unreasonable, however, to require
Ben-Yisrayl to articulate some plausible way in which he was harmed by
the lack of record of bench conferences. See, e.g., Jones v. District
Court, 780 P.2d 526, 529-30 n.7 (Colo. 1989) (mandamus action; state law and
rules of court required a record of bench conferences but any failure to
record all trial proceedings is subject to fact-specific harmless error analysis).
Here, the issue that triggered each bench conference can be ascertained from the
record. We know when objections occurred, and how the court ruled.
We also consider the fact that one of Ben-Yisrayls appellate attorneys served as
co-counsel at trial, and was presumably familiar with the issues raised and argued
in sidebars. See Hardy v. United States, 375 U.S. 277 (1964) (holding
that court-appointed trial counsel who also represents the indigent defendant on appeal gets
at least the transcript relevant to the points of error assigned; if new
counsel represents the indigent on appeal, the entire transcript is required).
The lack of bench conference records certainly suggests that a reviewing court should
take an appropriately liberal approach to issues that might otherwise be considered waived
at trial for lack of either objection or argument. It also justifies
giving Ben-Yisrayl the benefit of the doubt in speculating about what may have
been discussed during any of the unrecorded sidebars. It does not, however,
relieve Ben-Yisrayl entirely of his obligation to make issue-specific claims of error.
See App. R. 8.3(A)(7).
The Suppression Hearing. By brief, (T.R. at 528, 536), and at a
pretrial hearing, (T.R. 2nd Supp. at 188, 328), Ben-Yisrayl argued that his confessions
should be suppressed because his arrest was not supported by probable cause.
The court rejected this argument. Ben-Yisrayl, 690 N.E.2d at 1152. On
direct appeal Ben-Yisrayl again claimed that his confessions were the fruit of an
illegal arrest. Id. He did not argue that the gaps in
the record precluded meaningful review of this claim. We addressed the issue
on the merits and rejected his argument. Id.
In his post-conviction claim, Ben-Yisrayl points to numerous undecipherables in the 158-page suppression
hearing transcript in partial support of his overall claim that the trial record
is materially deficient. (T.R. 2nd Supp. at 188-346; P-C.R. at 512-23.)
We implicitly rejected this argument on direct appeal when we considered and rejected
his suppression argument on the merits.
We have revisited the suppression hearing record in light of Ben-Yisrayls lengthy post-conviction
list of record errors. Many of the undecipherables are on topics that
are extraneous, such as preliminaries on the hearing mechanics, (
see, e.g., P-C.R. 2nd
Supp. at 189-90), formalities preceding summary arguments, (see, e.g., id. at 305, 330),
an objection by the State that was overruled, (see id. at 250-51), and
the courts explanation for telling defense counsel to rephrase a leading question (see
id. at 252). Others are responses to questions, where a follow-up question
makes clear what the substance of the response was.
See footnote (
See, e.g., id.
at 234-35, 237-40, 247-48, 254-55, 260, 264, 268, 282.)
Although there are passages that contain more serious flaws, we again conclude that
these gaps, viewed in an overall context, are not severe enough to relieve
Ben-Yisrayl of his burden of making specific claims of error. Based on
the state of the record we would not penalize him by treating any
substantive suppression arguments as waived for failure to cite where the issue was
raised and preserved at trial. The flaws in the record are not
material, however, and we stand by our previous implicit conclusion that the record
regarding the suppression claim is sufficient.
Other Miscellaneous Errors and Omissions. A number of brief passages during voir
dire and witness testimony contain incoherent words or phrases. Some of these
problems were resolved during the reconstruction meetings, in which both of Ben-Yisrayls trial
attorneys actively participated. (P-C.R. at 358-414.) At post-conviction, Ben-Yisrayl points to
additional record deficiencies that appellate counsel failed to identify, plus a few that
the reconstruction meetings failed to resolve.
See footnote (P-C.R. at 461-88.)
Each entry on Ben-Yisrayls errata list must be viewed in the context of
the surrounding record. In each instance the subject matter of the discussion
is sufficiently obvious from the record preceding and following the cited deficiency to
allow specific claims of error. Again, we find no material defect(s) in
Summary. Trial records are rarely if ever perfect, and this record is
far from the best. We conclude, however, that none of the errors
and omissions raise material issues. Ben-Yisrayls appellate counsel was therefore not ineffective
for failing to challenge the overall sufficiency of the record, and Ben-Yisrayl has
received due process, including meaningful appellate and collateral review.