Ben-Yisrayl v. State

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
Indianapolis, Indiana
Emily Mills Hawk
Deputy Public Defender
Indianapolis, Indiana

IN THE

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). )

APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Thomas W. Webber, Judge
Cause No. 64D02-9102-CF-22

August 28, 2001

SHEPARD, Chief Justice.

Obadyah Ben-Yisrayl sits on Death Row after committing four murders.
After his appeal in the two killings involved in this case, he sought post-
conviction relief, unsuccessfully. We have spent considerable time
examining his most energetic contention--that the transcript of his trial
is in such deplorable shape that the case should be tried anew. We affirm
the post-conviction court’s denial of relief.

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:
I. Whether the post-conviction court properly excluded polygraph
evidence;

II. Whether his appellate lawyer was ineffective;

III. Whether his trial counsel rendered ineffective assistance;

IV. Whether the post-conviction court properly admitted evidence of
George and Ilija Balovski’s murders and the shotgun found in Ben-
Yisrayl’s closet;

V. Whether certain procedural rulings of the post-conviction court
were erroneous; and

VI. Whether the trial transcript was so inadequate as to deny Ben-
Yisrayl due process or meaningful appellate and collateral
review.

Facts and Procedural History

On the evening of December 13, 1990, Harchand Dhaliwal was killed by
a shotgun wound to the head while working as a gas station attendant in
Portage, Indiana. About $327 was missing from the station. Two days
later, Marie Meitzler was also killed by a shotgun wound to the neck while
working as a motel clerk, not far from the gas station. The motel’s cash
register was missing about $467.

On December 18, 1990, Ilija (Eli) and George Balovski were each
killed by gunshot wounds to the head while working at their tailor shop in
Gary, Indiana. Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind. 2000).

Portage police officers recovered from Ben-Yisrayl’s apartment a sawed-
off shotgun that was later determined to have fired a shell casing involved
in the Balovski shootings. After he was arrested, Ben-Yisrayl gave a
formal statement to the police admitting each of these murders.

Post-Conviction Standard of Review

As we have often explained, post-conviction proceedings are not
intended and will not operate as a “super-appeal” for the convicted. See
Langley v. State, 256 Ind. 199, 203, 210, 267 N.E.2d 538, 540, 544 (1971);
Weatherford v. State, 619 N.E.2d 915, 916 (Ind. 1993). Rather, these
proceedings provide a narrower remedy for subsequent collateral challenges
to convictions. Weatherford, 619 N.E.2d at 916-17. A petitioner has the
burden to establish grounds for relief by a preponderance of the evidence.
Ind. Post-Conviction Rule 1(5).

On appeal of the denial of post-conviction relief, a petitioner
“stands in the position of one appealing from a negative judgment.”
Fleenor v. State, 622 N.E.2d 140, 142 (Ind. 1993), cert. denied, 513 U.S.
999 (1994). Consequently, the appellate court considers only the evidence
and reasonable inferences from such evidence that support the prior
judgment. Weatherford, 619 N.E.2d at 917. “To prevail . . . the
petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite to that reached by the trial court.”
Id. (citing Williams v. State, 508 N.E.2d 1264 (Ind. 1987)).

I. The Belated Polygraph Exam

Ben-Yisrayl says the post-conviction court infringed upon his
constitutional right to present a defense by refusing to consider evidence
that he passed a polygraph examination in 1999, almost nine years after the
crimes occurred.[1] (Appellant’s Br. at 9, 21; P-C.R. at 564-66, 607-09.)

We rejected an argument similar to Ben-Yisrayl’s 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 accused’s 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 operator’s view about the veracity of
such out-of-court statements.

II. Was Ben-Yisrayl’s Appellate Lawyer Ineffective?

Ben-Yisrayl says his appellate lawyer should have argued that his
death sentence violated the U.S. Constitution because “literally no
evidence supports it.” (Appellant’s Br. at 23.) This contention refers to
the fact that during the penalty phase of Ben-Yisrayl’s trial, the State
presented no new evidence but specifically asked the jury to consider all
the evidence presented to them during the guilt phase, as provided in Ind.
Code § 35-50-2-9(d).[2]

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. See Ind. Code Ann. § 35-50-2-9(a)(West 1993),[3]
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 State’s 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 State’s reliance on guilt
phase evidence during the sentencing phase as a federal constitutional
claim.[4] He asserts that his appellate counsel was ineffective for
failing to argue on direct appeal that the penalty phase of Ben-Yisrayl’s
trial violated several of his federal constitutional rights.[5]
(Appellant’s 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 [],” (Appellant’s Br. at 25), and that his lawyer was
deficient for not arguing the point.

We held during Ben-Yisrayl’s direct appeal that in the penalty phase
of trial the jury may consider all the evidence introduced at the trial
stage of the proceedings[6] whether the State requested incorporation of
the guilt phase evidence into the penalty phase or not.[7] 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.

III. Trial Counsel Effectiveness

A. On Jury Instructions. Ben-Yisrayl claims that his trial counsel
was ineffective for failing to argue that the word “arises” in a reasonable
doubt instruction impermissibly shifted the burden of proof at the guilt
phase of his trial.[8] (Appellant’s Br. at 28-30). He also claims
ineffective assistance for failure to challenge a presumption-of-
truthfulness instruction.[9] Id. at 30-32. He concedes that we rejected
these same arguments in his post-conviction challenge to his convictions
and death sentences for killing the Balovski brothers. Ben-Yisrayl v.
State, 729 N.E.2d at 111-12; (Appellant’s Br. at 27 n.3). Our conclusion
is the same here: counsel did not fall below an objectively reasonable
performance for failing to challenge these instructions. See Ben-Yisrayl,
729 N.E.2d at 111-12.

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. (Appellant’s 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. (Appellant’s 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)[10] violates the equal privileges clause of the Indiana
Constitution.[11] (Appellant’s 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 same.

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-Yisrayl’s contentions about the effectiveness of
his trial counsel.

IV. Admissibility of Evidence at Trial

A. The Balovski Murders. Ben-Yisrayl argues that the trial court
improperly admitted evidence that Ben-Yisrayl murdered George and Ilija
Balovski. (Appellant’s Br. at 33.) As Ben-Yisrayl concedes, this issue
was raised in his direct appeal and resolved against him.[12] The decision
on that issue is res judicata. See Sweeney v. State, 704 N.E.2d 86 (Ind.
1998), cert. denied, 527 U.S. 1035 (1999).

B. The Shotgun. Ben-Yisrayl next argues that the shotgun found in his
mother’s apartment was illegally seized and therefore improperly admitted
into evidence at trial because there was no probable cause to believe that
it was contraband. (Appellant’s 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.”
(Appellant’s 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,[13] as defined by Ind. Code § 35-47-
1-10.[14] 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.

V. Post-Conviction Procedural Rulings

Ben-Yisrayl asserts that the post-conviction court denied him the
right to full and fair litigation at his post-conviction hearing when the
court “refused to assist Ben-Yisrayl in securing additional relevant
information possessed by the government.” (Appellant’s Br. at 54.) Ben-
Yisrayl claims that access to information regarding the relationship
between Ivory Maxwell, a State’s witness, and Mark Becker, a Special Agent
with the Federal Bureau of Investigation, was “crucial to a reliable
outcome in this case.” We conclude it was not.

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 State’s 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-Yisrayl’s case and to discredit Maxwell’s testimony. (See
Appellant’s Br. at 56). After examining the content of Maxwell’s testimony
and the effectiveness of defense counsel’s cross-examinations, the post-
conviction court found that the evidence that Ben-Yisrayl sought was not
material.[15] 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 Petitioner’s 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 Maxwell’s 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 court’s 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. (Appellant’s 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.” (Appellant’s Br. at 57.) We disagree.

The mistrial occurred with the first attempt to impanel a jury for Ben-
Yisrayl’s 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 prosecutor’s statement could not have reasonably been interpreted
by the jury as a suggestion to infer guilt from the defendant’s 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 prosecutor’s 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-Yisrayl’s 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.

VI. An Imperfect But Sufficient Record

Ben-Yisrayl argues vigorously that errors and omissions in the record
entitle him to a new trial. (Appellant’s Br. at 58.) After careful
scrutiny of the record, we disagree.

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, 2718.)

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 Appellant’s 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 Appellant’s 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 State’s 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-Yisrayl’s 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 the record.[16] He also argues
that the flaws in the record denied him due process and the right to
meaningful appellate and collateral review. (Appellant’s 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. (Appellee’s 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 man’s
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).[17]

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-Yisrayl’s 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.[18]

We have revisited the suppression hearing record in light of Ben-
Yisrayl’s 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
court’s 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.[19]
(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-Yisrayl’s 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.[20] (P-C.R. at 461-
88.)

Each entry on Ben-Yisrayl’s 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 the record.

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-Yisrayl’s 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.

Conclusion

We affirm the decision of the post-conviction court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ben-Yisrayl cites other state and federal constitutional provisions but
offers specific arguments only on the right of a defendant to present a
defense under the Sixth and Fourteenth Amendments to the U.S. Constitution
and Ind. Const. art. I, § 13. His other constitutional claims are
therefore waived under Ind. Appellate Rule 8.3(A)(7).
[2] In a sentencing hearing, “The jury or the court may consider all the
evidence introduced at the trial stage of the proceedings, together with
new evidence presented at the sentencing hearing.” Ind. Code Ann. § 35-50-
2-9(d)(West 1993).
[3] “In the sentencing hearing after a person is convicted of murder, the
state must prove beyond a reasonable doubt the existence of at least one
(1) of the aggravating circumstances alleged.” Ind. Code Ann. § 35-50-2-
9(a)(West 1993).
[4] Specifically, Ben-Yisrayl claims that the jury’s reliance on the
evidence presented in the guilt phase of trial to make its determination
regarding the death penalty violated his (1) Fourteenth Amendment right to
due process for failing to follow the proper procedure for an Indiana
penalty trial; (2) Sixth and Eighth Amendment rights to the protection
provided by a bifurcated proceeding; and (3) Sixth Amendment right to have
a jury decide beyond a reasonable doubt from “facts properly before the
jury.” (Appellant’s Br. at 24-26.)
[5] When Ben-Yisrayl’s appellate counsel, Gary S. Germann, was questioned
during Ben-Yisrayl’s post-conviction hearing as to why he did not raise a
federal constitutional claim regarding the jury’s death sentence
determination, German responded, “I did not consider it a United States
Constitutional issue at the time.” (P-C.R. at 1477.)
[6] See Ind. Code Ann. § 35-50-2-9(d)(West 1993).
[7] Ben-Yisrayl, 690 N.E.2d at 1151-52.
[8] The challenged instruction defined reasonable doubt as “a fair, actual,
and logical doubt that arises in your mind after an impartial consideration
of all the evidence and circumstances in the case.” (T.R. 2nd Supp. at
13.)
[9] This instruction told jurors to “attempt to fit the evidence to the
presumption that the defendant is innocent and the theory that every
witness is telling the truth.” (T.R. 2nd Supp. at 3.) The same
instruction told jurors, “In considering the testimony of any witness, you
may take into account . . . any interest, bias or prejudice the witness may
have . . . . ” (Id.)
[10] This statute lists various “good causes” for challenging a prospective
juror in a criminal trial. Under § 5(a)(3), cause arises in a capital case
“[i]f . . . the person entertains such conscientious opinions as would
preclude the person from recommending that the death penalty be imposed.”
[11] Ind. Const. art. I, § 23 says: “The General Assembly shall not grant
to any citizen, or class of citizens, privileges or immunities, which, upon
the same terms, shall not equally belong to all citizens.”
[12] We held, “[E]ven if the evidence was erroneously admitted, which we do
not decide, such error would be harmless.” Ben-Yisrayl, 690 N.E.2d at
1147.
[13] Ind. Code Ann. § 35-47-5-4.1 (West 1990) criminalizes the possession
of a sawed-off shotgun.
[14] Ind. Code Ann. § 35-47-1-10 (West 1990) defines a “sawed-off” shotgun
as “having one (1) or more barrels less than eighteen (18) inches in
length; and (2) any weapon made from a shotgun . . . if the weapon as
modified has an overall length of less than twenty-six (26) inches.”
[15] The post-conviction court’s findings included:
Maxwell’s testimony was that he had seen the shotgun alleged to be the
murder weapon at Petitioner’s residence (R. 4343-44), that he had seen
Petitioner handle the shotgun “a couple of times” (R. 4345), and that
while handling the shotgun Petitioner had said that “he had did some
damage with it” (R. 4345). Maxwell stated that in his statement to
the FBI on February 7, 1991, he told the FBI that Petitioner had said
“he did some damage with it” (R. 4347). On cross-examination, defense
counsel elicited that in his deposition, Maxwell had said he saw
Petitioner with the shotgun once, and hadn’t actually seen Petitioner
in physical possession of the shotgun, but that it was on Petitioner’s
bed (R. 4354-56). Counsel also elicited from Maxwell that in his
deposition he had said that the only conversation about the shotgun
was that Petitioner had said that he had just shot a hole in the
mattress when Maxwell and McGee walked in, and hadn’t said anything
about doing damage with the shotgun (R. 4359-60, 4361, 4363, 4364).
Finally, defense counsel elicited that Petitioner never told Maxwell
that he (Petitioner) was involved in either the tailor shop murders in
Gary or either of the two murders charged in this case, the Hudson Oil
murder or the Howard Johnson’s murder (R. 4371-72). On recross
examination, counsel got Maxwell to agree that he “didn’t indicate
that Chris said he had done some damage with it, just that this baby
here has done some damage” (R. 4378).
(P-C.R. at 1077-78.)
[16] Alternatively, he argues that he was constructively denied the
assistance of counsel altogether, citing Penson v. Ohio, 488 U.S. 75
(1988)(defendant was denied the assistance of counsel when his appointed
appellate attorney withdrew after filing a conclusory statement that the
defendant had no meritorious claims, and the court refused to appoint
replacement counsel). The facts here are not analogous, and we analyze Ben-
Yisrayl’s ineffectiveness claim under the usual Strickland standard.
[17] Others include capitalization errors (such as failing to capitalize
the word “State,” (P-C.R. at 480)), spacing errors (such as failing to
insert a space between “speaking” and “with,” (P-C.R. at 480)), and other
trivial oversights (such as failing to insert “the” in the court’s
instruction to a witness “Please be seated in [the] chair there, ma’am,” (P-
C.R. at 486)). On some occasions, the record misidentifies a speaker or
characterizes the continuation of a question as an answer, but in those
cases the error and the appropriate correction are apparent, as shown by
the fact that Ben-Yisrayl’s errata listing indicates what obviously
happened. (See, e.g., P-C.R. at 462, 466, 478.) Several errors are listed
twice. (P-C.R. at 464-65, 482-83.)
[18] We were aided in arriving at this determination by the fact that Ben-
Yisrayl had raised an identical claim when he appealed his convictions for
the Balovski murders. Ben-Yisrayl, 690 N.E.2d at 1152. His factual
allegations and argument were the same. Id.
[19] One example is the question, “So, you took them to three other
locations?” (P-C.R. 2nd Supp. at 260.) Ben-Yisrayl lists as error the
fact that the answer is “(Undecipherable).” (Id.) What he does not add is
that the next question is prefaced, “Two more, alright. . . .” (Id.)
[20] A very few errors or omissions listed by appellate counsel, all during
voir dire, were not addressed because the list was off by one page. For
example, the reconstruction meeting participants found “nothing material
absent” on page 1201, lines eight and nine, which were cited in Ben-
Yisrayl’s errors list. (P-C.R. at 364.) They did not discuss illegible
words in lines eight and nine of page 1200. (Id.) They soon figured out
the discrepancy and adjusted the page numbers shown on the list as they
went along. (P-C.R. at 365-66.)