ATTORNEYS FOR APPELLANT			ATTORNEYS FOR APPELLEE

Gary S. Germann 					Pamela Carter

Portage, Indiana   					Attorney General of Indiana

I. Alexander Woloshansky				Arthur Thaddeus Perry

Merrillville, Indiana					Deputy Attorney General

							Indianapolis, Indiana

In The

INDIANA SUPREME COURT

OBADYAH BEN-YISRAYL, 			)

f/k/a CHRISTOPHER D. PETERSON,		)	

		Defendant-Appellant,		)	                 

							)

		v.					)	64S00-9103-DP-00229 

							)

STATE OF INDIANA, 				)

		Plaintiff-Appellee.			)

                          ________________________________________________  

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable Thomas W. Webber, Judge

Cause No. 64D02-9102-CF-022

                        _________________________________________________

On Direct Appeal

DICKSON, J.

	The defendant-appellant, Christopher D. Peterson, was convicted of two counts of murder1 and two counts of felony murder2 for the intentional killing and robbery of Harchand Dhaliwal (Counts 1 and 2) and Marie Meitzler (Counts 3 and 4).3  In accordance with the jury recommendation, the trial court ordered that a death sentence be

imposed.

	On December 15, 1990, Marie Meitzler, a Portage, Indiana, motel clerk was killed

as the result of a shotgun wound to the neck and $467.00 was missing from the cash

register.  The next day, Harchand Dhaliwal, an attendant at a nearby gas station, was

killed by a shotgun blast to the head and $327.55 was missing.  The defendant

subsequently confessed to these murders. 

	The defendant presents twenty claims in this direct appeal, which we regroup and

address as follows:  (1) severance of offenses;4  (2) change of venue;5  (3) admissibility of evidence of the defendant’s other crimes;6  (4) prosecutor’s comments during closing argument;7  (5) jury instructions;8  (6) sufficiency of evidence of statutory aggravating circumstances at the penalty phase;9  (7) admissibility of defendant’s statements;10 (8) search and seizure;11 and (9) appropriateness of the death sentence.  We affirm.

1.    Severance of Offenses

	The defendant was charged on February 14, 1991, with two counts of murder and

two counts of felony murder stemming from the shotgun murder and robbery of Harchand

Dhaliwal on December 13, 1990, at his workplace and the shotgun murder and robbery of

Marie Meitzler on December 15, 1990, at her workplace.  The defendant contends he was

entitled to a severance of the charged offenses as a matter of right.  He also contends that,

in the alternative, the denial of severance was an abuse of the trial court’s discretion.

	Two statutory provisions are at issue here:  Indiana Code Sections 35-34-1-9(a) and 35-34-1-11(a).

Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the

offenses: 

	(1) 	are of the same or similar character, even if not part of a single scheme or plan;  or 

	(2) 	are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or

plan.”

Ind. Code § 35-34-1-9(a) (1993). 

Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or

similar character, the defendant shall have a right to a severance of the

offenses.  In all other cases the court, upon motion of the defendant or the

prosecutor, shall grant a severance of offenses whenever the court

determines that severance is appropriate to promote a fair determination of

the defendant’s guilt or innocence of each offense considering:

	(1) 	the number of offenses charged;

	(2) 	the complexity of the evidence to be offered;  and

	(3) 	whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Ind. Code § 35-34-1-11(a) (1993).

	Interpreting these statutes, we have required severance of offenses as a matter of

right under subsection 11(a) only when the offenses are joined solely because of the reason listed in subsection 9(a)(1), i.e., that the offenses are of the same or similar

character.  See Brown v. State, 650 N.E.2d 304, 305 (Ind. 1995).  However, when the offenses are joined under subsection 9(a)(2), the court must grant a severance only if it determines that it is “appropriate to promote a fair determination of the defendant’s guilt

or innocence,” based on subsections 11(a)(1) through (3).  Conner v. State, 580 N.E.2d 214, 219 (Ind. 1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117 L.Ed.2d 640 (1992).  

	Under subsection 9(a)(2), offenses may be sufficiently “connected together” to justify joinder if the State can establish that a common modus operandi linked the crimes and that the same motive induced that criminal behavior.  Davidson v. State, 558 N.E.2d 1077, 1083 (Ind. 1990).  In this case, the crimes for which the defendant was charged both have the same modus operandi.  Both shootings involved victims who were clerks and were killed at their place of business while working alone between the hours of 6:00

p.m. and 8:00 p.m.  The assailant in both shootings was identified as someone who drove

a white Nissan Sentra automobile.  In both killings, the victims’ cash registers were

emptied.  The cause of death for both victims was a shotgun blast to the head, at close

range, from a .12 gauge shotgun.  Winchester AA 8 shotgun waddings were also found at

both crime scenes.  Both shootings were committed in the City of Portage, two days apart.  As noted, the crimes also had the same motive: robbery.  Because these facts are sufficient to show a “series of acts connected together,” they were not joined solely because they were of a “same or similar character” and severance was not mandated as a matter of right.  Accordingly, “whether to sever multiple charges is a matter within the trial court’s discretion, taking into account the three factors listed in [subsections 11(a)(1) through (3)], and a denial of severance will be reversed only upon a showing of clear error.”  Id. 

	The defendant concedes he cannot establish that the number of offenses charged or

the complexity of the evidence offered subjected him to any prejudice, as required under

Indiana Code Section 35-34-1-11(1) and (2).  He has similarly presented no evidence that the jury was unable to distinguish the evidence and apply the law intelligently as to each

offense.  The trial court did not abuse its discretion in refusing to sever the offenses for

trial.

2.    Change of Venue

	The defendant contends that the record relating to his Motion for Change of Venue

is insufficient to permit adequate appellate review.  Alternatively, he argues that, to the

extent that review is possible, the trial court abused its discretion in denying his motion. 

	On August 25, 1994, the defendant sought relief in this Court for a new trial,

alleging portions of the trial transcript were indecipherable.12  In response, this Court ordered the following:

	As to the claim that the faulty transcript renders appellate review

impossible, Ind. Appellate Rule 7.2(c) governs.  That rule provides for

reconstruction of the record where material is omitted from the record or

where the record does not accurately represent the actual trial court

proceedings.  It provides “[i]ncompleteness or inaccuracy of the record of

proceedings shall not constitute a ground for dismissal of the appeal or

preclude review on the merits.”  App.R 7.2(C)(2).  

	Pursuant to App.R 7.2(C), the Court ORDERS the following.  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.

	The process outlined above will be conducted with respect to each apparent error in the trial transcript contained in the record of proceedings

and in any transcripts submitted as part of any supplemental records.  This task shall be completed and the results submitted to this Court on or before

February 1, 1995.  All further appellate briefing in this case is stayed until further order of this Court. . . .

Indiana Supreme Court Order, dated Oct. 6, 1994 (emphasis added).

	On May 8, 1995, we removed the stay on briefing, stating, “On October 6, 1994,

this Court issued an Order staying briefing in this case until supplementation of the

Record of Proceedings was completed.  This Court now deems the Record of Proceedings

filed and supplementation complete.”  Indiana Supreme Court Order, dated May 8, 1995.

	The defendant now alleges that portions of the trial transcript are still

indecipherable or missing.  Our order of October 6, 1994, made it clear that, if there were

any problems with the reconstruction of the record, they were to be brought to this

Court’s attention, in writing, before February 1, 1995, and certainly before we removed the stay on May 8, 1995, allowing appellate briefing to continue.  It was not until four

months after the date this Court set as the final date for completing the reconstruction

process, and almost one month after this Court deemed the process complete, that the

defendant made any mention of his perceived problems with the reconstruction process.13

	The defendant now contends there were problems with the reconstruction process or result.  However, he was ordered to present those to this Court while the briefing

period was stayed or at the very least he should have requested an extension in which to

continue the reconstruction process.  We formally resolved the reconstruction of the

record on May 8, 1995, without any objections from the defendant.  He has therefore

forfeited his claim regarding the sufficiency of the record.14

3.    Admissibility of Evidence of the Defendant’s Other Crimes  

	As proof of the defendant’s identity, the State introduced evidence that the

defendant was also responsible for the December 18, 1990, shotgun killings of Eli

Balovski and George Balovski.  The defendant had been charged with these crimes, but was not tried and convicted of these murders until after he had been convicted of the

murders in the case at bar.15  The defendant argues that the admission of this evidence was error.  However, even if the evidence was erroneously admitted, which we do not

decide, such error would be harmless. 

	Ignoring any reference to the Balovski murders, the evidence presented to the jury

in this case was overwhelming.  First and foremost, the jury was presented with the

defendant’s voluntary confession to police.  The State also presented testimony that, prior

to his arrest, the defendant admitted to an acquaintance that he had committed the

murders.  The defendant acknowledged his possession of a .12 gauge sawed-off shotgun,

which was identified as the same weapon used to commit the murders.  Several witnesses

testified to seeing the shotgun in the defendant’s possession.  The shotgun was found in a

closet in the bedroom which was previously occupied by the defendant.  Three other

witnesses testified they saw the defendant or his car either at the murder scene or in close

proximity thereto.

	In determining whether the erroneous admission of extrinsic offenses is harmless

error, we look to whether the error had substantial influence on the jury or whether one is left in “grave doubt.”  Hardin v. State, 611 N.E.2d 123, 132 (Ind. 1993) (internal citations omitted).  See Ind.Trial Rule 61.16  In light of the above evidence, we do not find the jury would have been “substantially influenced” by the possible erroneous admission of

evidence relating to the Balovski murders, nor are we left in “grave doubt” as to the

influence such admission may have had on the verdict.  Any error was therefore harmless.

4.    Prosecutor’s Comments During Closing Argument

	The defendant contends that reversible error occurred during the prosecutor’s

closing argument because the prosecutor directly commented on the defendant’s decision

to exercise his constitutional right not to testify.  He also argues that the trial court erred

in refusing to admonish the jury.

	While addressing a separate objection by the defendant at a bench conference during trial, the prosecutor informed the judge and the defendant that he intended to tell the jury there had been no evidence presented to explain why the defendant would

confess to a crime he didn’t commit.  The defendant objected and the prosecution responded by stating they were not commenting on the defendant’s failure to testify, but that they were stating there had been no evidence showing why someone would confess

to a crime they did not commit.  The trial court, seeking to clarify what the prosecution

meant by “evidence,” asked if the prosecution was referring to coercion, to which the

prosecution responded, “Yes, [it] could go to duress, anything.”  Record at 5566-67.  The

trial court then allowed the prosecution to proceed, stating, “You can comment that there

is no evidence,” but emphasized that the prosecution could not “comment in any fashion

on . . . the defendant’s failure to testify.”  Record at 5563-64.  The prosecutor continued

his closing argument and reminded the jury that he had told them in his opening statement

that the defendant confessed to killing the four victims with his shotgun.  He stated it was

self-evident “that no one freely and voluntarily confesses to a murder unless they’re

guilty.” Record at 5568.  He then challenged defense counsel17 to explain why a person would voluntarily confess to a crime they did not commit.

	The defense objected and sought a mistrial.  The trial court reserved its ruling until

it could review the record in its totality.  The State continued and proceeded to tell the

jury that “nobody will ever confess to a murder freely and voluntarily unless they commit it.  That’s why we have spent so much time, so much effort in explaining that the

confession . . . was freely and voluntarily given.”  Record at 5570.  The prosecution then

summarized the evidence it had introduced to show the confession was freely and

voluntarily given.  The prosecution concluded its argument by stating that the defense

would try to show the defendant was coerced into confessing, but that the prosecution

believed they had proven it was voluntary beyond a reasonable doubt.  Following closing

arguments, the trial court instructed the jury:

[A] person charged with the commission of a crime cannot be compelled to

testify and is under no duty or obligation to testify.  The fact that the

defendant did not testify raises no presumption of any kind against him.  It

shall not be commented upon, referred to, or in any manner considered by

the jury in determining the guilt or innocence of the defendant. 

Second Supp.Record at 16.  After reviewing the record and hearing arguments from both

sides, the trial court found that the comments were not improper and denied the

defendant’s request for a mistrial.  The defendant then asked for an admonishment, to

which the trial court responded that the instructions already given were more relevant

than an admonishment, which would only call attention to what the court had just told

them to disregard.

	When a defendant’s motion for mistrial is denied, reversible error exists only if that denial subjects the defendant to grave peril.  Taylor v. State, 587 N.E.2d 1293, 1299 (Ind. 1992).  Grave peril is measured by the probable persuasive effect on the jury.  Id. On appeal, the trial court’s decision is reviewed only for an abuse of discretion.  Steele v. State, 672 N.E.2d 1348, 1350 (Ind. 1996).  

	We have recently addressed this issue in Moore v. State, 669 N.E.2d 733 (Ind. 1996).  Analyzing both the historical and contemporary treatment of a prosecutor’s

comments on the defendant’s failure to testify, we held that: “The Fifth Amendment

privilege against compulsory self-incrimination is violated when a prosecutor makes a

statement that is subject to reasonable interpretation by a jury as an invitation to draw an

adverse inference from a defendant’s silence.”  Id. at 739.  Moore makes clear that direct and indirect references to the defendant’s failure to testify are not, per se, improper.  Id.   We therefore look to whether the prosecutor’s comments in this case could reasonably be

interpreted by the jury as an invitation to draw an adverse inference from the defendant’s

silence.

	The jury in this case could not reasonably have interpreted the prosecutor’s comments as suggestion to infer guilt from the defendant’s silence.  While the prosecutor

could have been more articulate, it is clear that he was responding to any possible

implications that the defendant’s confession was less than voluntary.  His “challenge” to

defense counsel was made to illustrate that the only reason a defendant would confess to

a crime he did not commit would be because of coercion or duress.  He then pointed out

that the State presented substantial evidence that the confession was not the result of

coercion or duress.  Consequently, he was arguing that the confession should be taken by

the jury as direct evidence of the defendant’s guilt.  The theme of the State’s argument

was a challenge directed at defense counsel which pointed out the uncontradicted nature

of the State’s evidence of voluntariness and invited defense counsel to explain, in its closing argument, any contrary conclusions.  

	Because the jury could not have reasonably interpreted the State’s argument as an

impermissible suggestion, the probable persuasive effect on the jury does not rise to the

level of grave peril.  Therefore, the prosecutor did not commit reversible error and the

trial court did not abuse its discretion in refusing to grant a mistrial and refusing to give

an admonishment.18

5.    Jury Instructions

	The defendant argues that fundamental and reversible error occurred as the result

of three jury instructions given by the trial court at the guilt and penalty phases of the

trial.  

	The defendant first claims that the instruction on accomplice liability was

erroneous because no evidence of an accomplice was introduced at trial.  This Court, in

Swoaks v. State, 519 N.E.2d 149 (Ind. 1988), was faced with an analogous situation.  The defendant in Swoaks argued the trial court should not have given an accomplice instruction because he was actually charged as a principal.  Id. at 151.  The Swoaks court found that some evidence showed that an accomplice was also involved in the crime for

which the defendant was charged as a principal.  Id.  We stated:

In view of the fact jurors not totally familiar with the law might have been

persuaded that if appellant were only an accomplice he could not be

convicted as a principal, it was entirely proper for the trial court to give the

instruction that an accomplice could be charged as a principal.

Id.  

	The trial court in this case found that the testimony of two witnesses, Barbara

Wright and Bob Bailey, raised the inference that the defendant had been accompanied by

one to two other persons on the night of the murder.  Furthermore, during his discussion

of another issue in his appellate brief, the defendant concedes as much.19  The instruction on accomplice liability was proper.

	As to the remaining instructions challenged by the defendant on appeal, the

defendant failed to object and, thus, his claim of error was not properly preserved at trial. 

When an issue is not properly preserved at trial, this Court will reach the merits of the

case only if the error is fundamental.  Beasley v. State, 643 N.E.2d 346, 348 (Ind. 1994).  To qualify as fundamental error, the defendant bears the burden of proving that “the error

[was] a substantial blatant violation of basic principles rendering the trial unfair to the

defendant.”  Hart v. State, 578 N.E.2d 336, 337 (Ind. 1991).

	The defendant contends that the following instruction was fundamental error: “You may also consider the [prior inconsistent] statements as evidence in determining the

guilt or innocence of the defendant of the crime charged.”  He is correct that, in Modesitt v. State, 578 N.E.2d 649, 654 (Ind. 1991), we modified the applicable evidentiary rule, overruling the case upon which this jury instruction was patterned:  Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975).  It would be hard to imagine a situation in which such error could be fundamental.  Furthermore, in this case, the defendant has not identified any prior inconsistent statements in the record which may have been affected by this jury instruction.20  We are not persuaded that the alleged error was a substantial blatant violation rendering his trial unfair.  His claim of fundamental error fails.

	He also contends that the inclusion of an instruction on aggravation and mitigation during the penalty phase was reversible as fundamental error because the instruction provided:  “The law provides for the penalty of death upon conviction for the crime of murder under the following circumstances:  The defendant . . . has committed another

murder at any other time.”  Record at 49.  During the guilt phase, the State had introduced evidence of the murders of Harchand Dhaliwal and Marie Meitzler, the

victims of the charged offenses in this case, as well as evidence that he was responsible for the separate murders of Eli and George Balovski.21  See supra text accompanying note 15.  The defendant contends that, during the penalty phase, the jury could have impermissibly considered the Balovski murders as the “another murder at any other time”

referenced by the jury instruction.  Supplemental Brief of Appellant at 11-12.

	However, at no point during the penalty phase were the Balovski murders mentioned.  Further, we evaluate whether the instructions as a whole sufficiently informed the jury of the murders they were to consider as statutory aggravating

circumstances.  Accord  Beasley, 643 N.E.2d at 348.  The penalty phase instructions given by the court and read to the jury before the instruction challenged here included an

instruction that the State was seeking the death penalty by alleging the existence of at least one aggravating circumstance:

Count 7:  The State of Indiana . . . now seeks the death sentence for [the

defendant], based on the existence of the following aggravated

circumstance:

	(1)	On or about the 13th day of December, 1990, in the County of Porter, State of Indiana, [the defendant] did murder Harchand

Dhaliwal and (a) the defendant . . . did commit another murder, to wit: the murder of Marie Meitzler on December 15, 1990.

Count 8:  The State of Indiana . . . now seeks the death sentence for [the

defendant], based on the existence of the following aggravated

circumstance:

	(1)	On or about the 15th day of December, 1990, in the County of Porter, State of Indiana, [the defendant] did murder  Marie

Meitzler and (a) the defendant . . . did commit another murder, to wit: the murder of Harchand Singh Dhaliwal on December 13, 1990.

Second Supp.Record at 35; Record at 215, 216 (emphasis added).  In addition, following

the final penalty phase instructions, the trial court again read to the jury the amended

charging information, which contained the same language as the instruction above.  The

instructions provided the jury with proper guidance as to which murders they were to

consider in finding the presence of statutory aggravating circumstances.  No error was

committed.

6.    Insufficient Evidence of Statutory Aggravator for the Death Penalty

	Following the defendant’s conviction for murder and felony murder, the penalty

phase began and the State advised the trial court that it intended to rest without offering

any new evidence, informing the jury that:

The court instructed you that you can consider all of the evidence in the

sentencing phase.  All the evidence that came in during the trial phase.  The

State will not submit any evidence in the penalty phase.  We are going to

rely upon all of the evidence that you have already received in making your

determination as to whether or not the State has proved beyond a reasonable

doubt one of those aggravating factors when this case is concluded.

Record at 5700.  The defendant does not contend that, considering the totality of evidence

in the guilt phase, the evidence of aggravating circumstances was insufficient.  Rather, the defendant contends only that, because the State failed to offer any evidence of a statutory aggravating circumstance at the penalty phase, it failed to prove the existence of an aggravator beyond a reasonable doubt as required by Indiana Code Section 35-50-2-

9(a).  The State responds by arguing that, although a motion to incorporate the evidence presented at the guilt phase “has become routine in capital cases,” there is no authority

requiring such incorporation.  Brief of Appellee at 14.  Indiana’s death sentencing statute provides, in pertinent part:

If the defendant was convicted of murder in a jury trial, the jury shall

reconvene for the 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.

Ind. Code § 35-50-2-9(d) (1993) (emphasis added).  

	The jury in the penalty phase was the same jury which had just completed the guilt

phase, convicting the defendant of two counts of murder and two counts of felony

murder.  The statute expressly allows the jury to consider all the evidence introduced at

the guilt phase, and the State specifically asked the jury to do so.  The defendant presents

no authority requiring the State to move to incorporate the guilt phase evidence at the

penalty phase.  We find no error on this issue.

7.    Admissibility of Defendant’s Statements

	The defendant contends that his confession should not have been admitted into

evidence because it was the product of both an illegal arrest and an unreasonable delay in

taking him before a magistrate, violating the Fourth Amendment to the United States

Constitution and Article 1, Sections 11 and 12 of the Indiana Constitution.

	The defendant was charged in Porter County with the December 13, 1990, murder

of Harchand Dhaliwal, the December 15, 1990, murder of Marie Meitzler.  He was also charged in Lake County with the December 19, 1990, murders of Eli and George Balovski.  These four separate murder charges all arose following the defendant’s arrest

on January 28, 1991, and confession on January 30, 1991.  See supra note 15.  Thus, the facts and circumstances of his arrest and subsequent confession at issue in this appeal are

identical to the circumstances we addressed in the defendant’s separate direct appeal for

the Balovski murders.  See Peterson v. State, 674 N.E.2d 528, 535-39 (Ind. 1996), petition for cert. filed (Oct. 14, 1997).  We rejected the defendant’s claims in Peterson and he presents no new argument or factual allegations as to these issues.  Therefore, we find

that, for purposes of his federal Fourth Amendment claim, the trial court properly denied

the defendant’s motion to suppress his confession.  Id. at 539.

	Separate and apart from the federal Fourth Amendment analysis, the Indiana Constitution provides an independent prohibition against unreasonable searches and

seizures under Article 1, Section 11.  Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994).  Such challenges are analyzed under an independent “reasonableness” standard.  Id.  We are not persuaded that the defendant’s arrest and the delay in taking him to a magistrate

were unreasonable under Article 1, Section 11.  

	The defendant also claims that his arrest and subsequent delay were unreasonable

under Article 1, Section 12 of the Indiana Constitution.22  However, the defendant provides no argument or authority for this contention.  The arrest and subsequent delay

were not unreasonable under the Fourth Amendment to the United States Constitution or under Article 1, Sections 11 and 12 of the Indiana Constitution.

8.   Search and Seizure

	The defendant contends that the trial court erred in finding that he could not

challenge the search of his mother’s apartment23 and that the shotgun seized during the search was in plain view and therefore admissible.

	To challenge a search as unconstitutional, a defendant must have a legitimate

expectation of privacy in that which is searched.  Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, 394 (1978);  Livingston v. State, 542 N.E.2d 192, 194 (Ind. 1989).  Because the arguments and facts of the search and seizure in this Porter County trial were identical to the arguments and facts of the search and seizure which had already been presented in the Lake County trial, “[r]ather than conducting a separate

hearing . . . the State and the defense stipulated to the testimony presented in Lake

County for the purpose of this Porter County trial.”  Brief of Appellant at 80.  We have recently addressed the defendant’s arguments regarding these search and seizure issues in

Peterson, 674 N.E.2d at 535-39, wherein we found that the defendant possessed “no reasonable expectation of privacy”24 and therefore could not challenge the search of his mother’s apartment.  Id. at 533.  Further, in finding that Article 1, Section 11 of the Indiana Constitution was not violated, we held that, “police observation of an item in

open view is not a search” and that one of the officers who found the shotgun “simply

made a discovery of that which was open to view.”  Id. at 535.  Because the defendant presents no new argument or factual allegations, we find that the trial court properly

rejected his challenges.

9.   Appropriateness of the Death Sentence

	Under the Indiana Constitution, Article 7, Section 4, we have the power to review

and revise the sentence of death imposed in this case.  Thus, having found that the trial

court committed no reversible error, we address whether, in our judgment, the death

sentence is appropriate for this offender and this offense.

	In the penalty phase, the evidence regarding the offender25 included testimony that the defendant was generous with friends, driving one friend to and from work weekly

because the friend did not have any transportation.  The defendant was described as being

non-violent and not abusive in any way.  He had lost his sixth-month-old child a year before the murders occurred, learning of the child’s impending death while attending his

grandfather’s funeral, a man whom he regarded as a father figure.  The mother of his

children testified that they had been dating since high school and that he was never

violent towards her or anyone else unless they provoked him.  He also helped out her

family whenever needed.  His own mother testified that she and the defendant had an

extremely close relationship.  She told the jury that he always set a good example for the

rest of her children and that he was a good student, graduating from high school and then

going into the Marine Corps.  However, the record also contains the mother’s testimony

at the suppression hearing that she often searched the defendant’s bedroom looking for

drugs the defendant may have hidden and that he was AWOL from the Marines when she required that he vacate her apartment the night before he was arrested.

	These murders were brutally committed.  Using a sawed-off shotgun, the defendant killed Marie Meitzler while she was working and removed $467.00 from the cash register.  The next day, he murdered Harchand Dhaliwal with a shotgun blast to the

head, taking $327.55.  The defendant confessed to these murders.  

	Considering both the offender and the offense in this case, we find that the penalty

is appropriate.

Conclusion

	The trial court is affirmed.

	SHEPARD, C.J., and SELBY, and BOEHM, JJ., concur.  SULLIVAN, J., concurs

in part and concurs in result with separate opinion.

Attorneys for Appellant

Gary S. Germann

Portage, Indiana

I. Alexander Woloshansky

Merrillville, Indiana

Attorneys for Appellee

Pamela Carter

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

OBADYAH BEN-YISRAYL,

f/k/a CHRISTOPHER D. PETERSON,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

)

)	Supreme Court No.

)	64S00-9103-DP-00229

)

)	

)	

)

)

)

	APPEAL FROM THE PORTER SUPERIOR COURT

	The Honorable Thomas W. Webber, Judge

	Cause No. 64D02-9102-CF-022

	ON DIRECT APPEAL

SULLIVAN,  Justice, concurring in part and concurring in result.

	I concur in sections 1 through 8 of the majority opinion.

	In this appeal, the defendant does not challenge the constitutionality or the appropri

ateness of his death sentence or the procedures (except to the extent discussed in issues 5

and 6 above) by which it was imposed.  Nevertheless, a death sentence cannot be imposed

in this state “until it has been reviewed by this Court and found to comport with the laws of

this State and the principles of our state and federal constitutions.”  Judy v. State, 416 N.E.2d 95, 102 (Ind. 1981).  

	This Court has regularly upheld the constitutionality of the Indiana death penalty

statute, including challenges to the version of the statute in effect at the time these crimes

were committed.1  See Peterson v. State, 674 N.E.2d 528 (Ind. 1996); Lambert v. State, 643 N.E.2d 349 (Ind. 1994), aff’d on reh’g, 675 N.E.2d 1060 (Ind. 1996), cert. denied 117 S.Ct. 2417 (1997); Bivins v. State, 642 N.E.2d 928 (Ind. 1994); Roche v. State, 596 N.E.2d 896 (Ind. 1992).  I find no basis not to reaffirm those decisions.

	As to the appropriateness of the death penalty in this case, the statute guides this

Court’s review by setting forth standards governing imposition of death sentences.  Follow

ing completion of the guilt phase of the trial and the rendering of the jury's verdict, the trial

court reconvenes for the penalty phase.  Before a death sentence can be imposed, our death

penalty statute requires the State to prove beyond a reasonable doubt at least one aggravat ing circumstance listed in subsections (b)(1) through (b)(12) of the statute.  Ind. Code § 35-

50-2-9.  Here the State supported its request for the death penalty with the following

aggravating circumstances: (1) that the defendant intentionally killed Marie Meitzler while

committing or attempting to commit robbery, Ind. Code § 35-50-2-9(b)(1)(G); (2) that the

defendant intentionally killed Harchand Dhaliwal while committing or attempting to commit

robbery, id.; and (3) that the defendant committed multiple murders (Marie Meitzler and Harchand Dhaliwal ), Ind. Code § 35-50-2-9(b)(8).

	To prove the existence of these aggravating circumstances at the penalty phase of the

trial, the State relied upon the evidence from the earlier guilt phase of the trial (with respect

to which the jury had found the defendant guilty of the two murders and the two robberies). 

I join the majority in rejecting an attack on the sufficiency of this evidence in section 6 of

this opinion.

	The death penalty statute requires that any mitigating circumstances be weighed

against any properly proven aggravating circumstances.  The majority opinion accurately

describes the evidence of mitigation here and I repeat it in the interest of completeness:

In the penalty phase, the evidence regarding the offender25 included testimony that the defendant was generous with friends, driving one friend to and from

work weekly because the friend did not have any transportation.  The defen

dant was described as being non-violent and not abusive in any way.  He had

lost his sixth-month-old child a year before the murders occurred, learning of the child's impending death while attending his grandfather's funeral, a man

whom he regarded as a father figure.  The mother of his children testified that

they had been dating since high school and that he was never violent towards

her or anyone else unless they provoked him.  He also helped out her family

whenever needed.  His own mother testified that she and the defendant had an

extremely close relationship.  She told the jury that he always set a good

example for the rest of her children and that he was a good student, graduating

from high school and then going into the Marine Corps.  However, the record

also contains the mother's testimony at the suppression hearing that she often

searched the defendant's bedroom looking for drugs the defendant may have

hidden and that he was AWOL from the Marines when she required that he

vacate her apartment the night before he was arrested.

____________

	25 This Court extensively considered this defendant in our review of his death sentence resulting from the murders of the Balovski brothers.  See Peterson, 674 N.E.2d at 542 (involving the imposition of the death sentence in the context of a

contrary jury recommendation).

Majority op. at 23-24.

	The jury subsequently returned a unanimous recommendation that a sentence of

death be imposed.

	Once the jury has made its recommendation, the jury is dismissed, and the trial court has the duty of making the final sentencing determination.  First, the trial court must find

that the State has proved beyond a reasonable doubt that at least one of the aggravating

circumstances listed in the death penalty statute exists.  Ind. Code § 35-50-2-9(e)(1). 

Second, the trial court must find that any mitigating circumstances that exist are outweighed

by the aggravating circumstance or circumstances.  Ind. Code § 35-50-2-9(e)(2).  Third, before making the final determination of the sentence, the trial court must consider the jury's

recommendation.  Ind. Code § 35-50-2-9(e).  The trial court must make a record of its

reasons for selecting the sentence that it imposes.  Ind. Code § 35-38-1-3 (1988).  

	In imposing the death sentence, the trial court found that the State proved beyond a

reasonable doubt the charged aggravating circumstances listed in the death penalty statute

— that the defendant had intentionally committed the murder of Marie Meitzler and of

Harchand Dhaliwal while committing or attempting to commit robbery and that the defen

dant had committed multiple murders.  The record and the law supports these findings.  

	The trial court found no mitigating circumstances to exist.  My own review of the

record leads me to conclude (as it did this Court in the other Peterson case) that there were mitigating circumstances — defendant’s difficult childhood, his emotional disturbance, his

graduation from high school, his service in the Marines, his age, and his caring relationship

with his child and her mother.  Cf. Peterson, 674 N.E.2d at 543.  As this Court did in the other Peterson case, I find the mitigating weight warranted for each of these considerations to be in the low range, individually and cumulatively.

	As required by our death penalty statute, the trial court specifically found that the

aggravating circumstances outweighed the mitigating circumstances.  The trial court also

gave consideration to the jury’s recommendation.  The trial court imposed the sentence of death.2

	Based on my review of the record and the law, I agree that the State has proven

beyond a reasonable doubt aggravating circumstances authorized by our death penalty

statute and that the mitigating circumstances that exist are outweighed by the aggravating

circumstances.  I conclude that the death penalty is appropriate for defendant’s murder of

Marie Meitzler and of Harchand Dhaliwal.